# G.E. v. Williamson County Board of Education

> District Court, M.D. Tennessee · February 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10438475

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** February 27, 2023
- **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/10438475

## How later opinions describe it (automated extraction)

- holding that “the two statutes are quite similar in purpose and scope” and “the elements of a Rehabilitation Act claim are largely similar to those of an ADA claim, with the additional requirement that the defendant be shown to receive federal financial assistance”
- explaining that procedural claims concern “the process by which the IEP is produced, rather than the myriad of technical items that must be included in the written document”
- finding that the issue before the Court was not whether the student would “benefit” from special education services, but whether the special education services were necessary for the student to receive FAPE

## Opinion text

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

G.E., the student; and S.B., the student’s
parent and legal guardian,
Case No. 3:21-cv-00702
Plaintiffs,
Chief Judge Waverly D. Crenshaw, Jr.
v. Magistrate Judge Alistair E. Newbern

WILLIAMSON COUNTY BOARD OF
EDUCATION,

Defendant.

To: The Honorable Waverly D. Crenshaw, Jr., Chief District Judge

REPORT AND RECOMMENDATION
G.E., by and through his parent S.B., brings this action under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1482, Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794(a), and Title II of the Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. §§ 12131–12165, appealing a state administrative law judge’s (ALJ) decision
finding that: (1) Defendant Williamson County Board of Education, doing business as Williamson
County Schools (WCS), did not violate § 504’s child find provisions by failing to identify and
evaluate G.E. as a student who might have a disability during fifth and sixth grade; (2) G.E. was
not eligible for special education services under the IDEA at the beginning of seventh grade;
(3) WCS did not deny G.E. access to services in violation of § 504 or the ADA during fifth and
sixth grade; and (4) G.E. and S.B. were not entitled to reimbursement for private school tuition,
compensatory education, or other relief. (Doc. No. 1.) G.E. and S.B. have moved for judgment on
the administrative record. (Doc. No. 24.) WCS has responded in opposition (Doc. No. 27), and
G.E. and S.B. have filed a reply (Doc. No. 28).
The District Judge referred G.E. and S.B.’s motion to the Magistrate Judge for a report and
recommendation. (Doc. No. 30.) Considering the parties’ arguments and the administrative record

as a whole, and for the reasons that follow, the Magistrate Judge will recommend that G.E. and
S.B.’s motion for judgment on the administrative record be denied.
I. Background
A. Legal Background
1. The IDEA
Congress enacted the IDEA “to ensure that all children with disabilities have available to
them a free appropriate public education [FAPE] 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

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.
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).

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).
A parent with concerns about “any matter relating to” the child’s identification, evaluation,
and educational placement may file a complaint with 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).
2. Section 504
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 who need or are believed to need special education or related services. 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

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 services under the IDEA are also protected by § 504,
but not all students who are considered to have qualifying impairments under § 504 are eligible
for special education services under the IDEA. B.H., 2009 WL 277051, at *6.
3. Title II
Like § 504, 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. § 12132. “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 both statutes are precisely the same.” S.S. v. E. Ky. Univ., 532 F.3d 445,
452–53 (6th Cir. 2008) (alteration in original) (quoting Weixel v. Bd. of Educ. of N.Y., 287 F.3d
138, 146 n.6 (2d Cir. 2002)). In educational discrimination cases where neither of these differences
is at issue, courts “analyze [plaintiffs’] ADA and § 504 claims together.” Id. at 453; see also Doe
v. Salvation Army in U.S., 531 F.3d 355, 357 (6th Cir. 2008) (“We review claims brought under
the Rehabilitation Act as we would claims brought under the Americans with Disabilities Act of
1990.”); McPherson v. Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 459–60, 463 (6th
Cir. 1997) (holding that “the two statutes are quite similar in purpose and scope” and “the elements
of a Rehabilitation Act claim are largely similar to those of an ADA claim, with the additional
requirement that the defendant be shown to receive federal financial assistance”).
B. Factual Background
G.E. attended Crockett Elementary School for fifth grade, the 2017–2018 school year.
(Doc. No. 15-5.) School records show that G.E. was absent a total of forty days that year and tardy

twenty-four times. (Doc. No. 15-12.) The administrative record contains emails and notes that S.B.
sent to Crockett Elementary School personnel regarding G.E.’s absences in many of which S.B.
stated that G.E. was absent because of physical illness or tardy because of traffic. (Doc. Nos. 15-
5–15-17.) Crockett Elementary School Principal Bronwyn Rector testified that S.B. told her during
a March 2018 meeting that G.E.’s absences were primarily due to doctor appointments and
illnesses like strep throat and the flu. (Doc. No. 15-10.) Rector also testified that S.B. mentioned
that G.E. had been struggling with anxiety, depression, and self-image and had started seeing a
mental health professional at Vanderbilt Medical Center. (Id.) G.E. completed the fifth grade with
average grades.
G.E. attended Woodland Middle School for sixth grade, the 2018–2019 school year. Even

though G.E. and S.B.’s home was not zoned for Woodland Middle School, G.E. was able to attend
the school for sixth grade without submitting an out-of-zone request due to a clerical error. G.E.
had eighteen absences and thirty-six tardies during his sixth-grade year, and his teachers were
initially concerned about his absences. However, G.E.’s final grades for the year were As, Bs, and
Cs, and school personnel testified that G.E. participated in school activities, maintained
friendships, exhibited appropriate social interactions with adults and peers, and performed
comparably to his peers academically (Doc. Nos. 15-10, 15-11).
S.B. submitted an out-of-zone request for G.E. to return to Woodland Middle School for
seventh grade, the 2019–2020 school year. WCS denied the request, and S.B. appealed with the
assistance of counsel. In support of the appeal, S.B.’s attorney sent a letter to two WCS school
board members informing them that, “on August 14, 2018, [G.E.] was diagnosed with generalized
anxiety disorder, mild major depressive disorder, recurrent episode[,] and oppositional defiant
disorder” and attaching medical documentation of the diagnoses. (Doc. No. 15-14, PageID# 5650.)

In the same letter, S.B.’s attorney asserted that G.E. “thrived” during sixth grade at Woodland,
“performing at a high level[,]” engaging in “appropriate peer interaction and [forming]
relationships” with students and staff. (Id.) WCS denied the appeal, S.B. and G.E. filed a due
process complaint asserting violations of § 504 and the IDEA, and WCS initiated the process of
evaluating G.E. for eligibility for special education and related services. As part of that process,
WCS requested permission for its expert, Dr. Vance Sherwood, to conduct a clinical psychological
evaluation of G.E. S.B. refused the examination.
WCS ultimately approved G.E.’s out-of-zone request to return to Woodland Middle School
based on S.B.’s representation that they intended to lease a home within the Woodland zone during
G.E.’s seventh-grade school year. G.E. attended Woodland Middle School for seventh grade, the

2019–2020 school year. WCS convened an IEP meeting on September 18, 2019, to determine
G.E.’s IDEA eligibility. S.B. attended the meeting. The IEP team and S.B. agreed that G.E. did
not meet the IDEA criteria for autism. The IEP team determined that G.E. also did not meet the
IDEA criteria for emotional disturbance or other health impairment, but S.B. disagreed. S.B.
argued that G.E. qualified for emotional disturbance and/or other health impairment classifications
because G.E.’s anxiety caused excessive absences that adversely affected his educational
performance. The IEP team found that, while G.E. displayed some characteristics of anxiety at
home and at school, the data did not support finding that G.E.’s anxiety was the primary cause of
his absences or that his anxiety otherwise adversely affected his educational performance. S.B.
declined WCS’s offer to hold a § 504 meeting after the IDEA meeting. (Doc. No. 15-11.)
S.B. placed G.E. in the Rogers Behavioral Health OCD/Anxiety Partial Hospitalization
Program from October 2019 through February 2020, during which time WCS provided G.E. with

homebound instruction. WCS again offered to hold a § 504 meeting, but S.B. declined. WCS
closed all of its schools in March 2020 due to the COVID-19 pandemic, and its schools remained
closed for the rest of that academic year.
WCS approved G.E.’s out-of-zone request to attend Woodland Middle School for eighth
grade, the 2020–2021 school year. WCS’s expert conducted a clinical psychological evaluation of
G.E. pursuant to a court order in August 2020. After the evaluation, WCS proposed holding
another IDEA eligibility meeting in September 2020. G.E. and S.B. refused to participate and
instead informed WCS that G.E. was being placed in a private program at Currey Ingram
Academy.
C. Procedural History

1. Due Process Hearing
In July 2019, after WCS initially denied G.E.’s out-of-zone request for seventh grade, G.E.
and S.B. filed a due process complaint alleging that G.E.’s absences triggered WCS’s child find
obligations under § 504 and the IDEA and that WCS violated these statutes by failing to evaluate
G.E. earlier. (Doc. No. 15-1.) G.E. and S.B. filed an amended due process complaint in April 2020.
An ALJ in the Tennessee Department of Education Division of Special Education presided
over a due process hearing held on January 11–15, February 2–4, April 15, 16, and 23, and May
10, 2021. G.E. and S.B. were represented by counsel, and more than twenty witnesses testified
during the hearing. The ALJ issued a final written decision on July 12, 2021. (Doc. No. 15-17.)
The ALJ’s findings included that:
1. The Petitioners have failed to meet their burden of proof that WCS
committed a child find violation for the 2017–2018 school year.
2. The Petitioners have failed to meet their burden of proof that WCS
committed a child find violation for the 2018–2019 school year.
3. The Petitioners have failed to meet their burden of proof that WCS
committed a child find violation for the 2019–2020 school year.
4. The Petitioners have failed to meet their burden of proof that G.E. is eligible
for special education services under the IDEA.
5. The Petitioners have failed to meet their burden of proof that G.E. was
denied access to programs or services in violation of the Americans with
Disabilities Act and/or Section 504 of the Rehabilitation Act.
6. The Petitioners have failed to meet their burden of proof that G.E. is entitled
to compensatory education, reimbursement for placement at Currey Ingram
Academy, or any other requested relief.
7. WCS is the prevailing party on all claims.
(Id. at PageID# 7227–28.)
2. Federal District Court Proceedings
G.E. and S.B. initiated this action by filing a complaint under 20 U.S.C. 1415(i)(2),
alleging that WCS violated § 504’s child find provision and otherwise discriminated against G.E.
in violation of § 504 and Title II for G.E.’s fifth-grade and sixth-grade years and that WCS violated
the IDEA by finding G.E. ineligible for an IEP in his seventh-grade year. (Doc. No. 1.) G.E. and
S.B.’s complaint seeks reimbursement for the costs of Currey Ingram, private tutoring and other
educational supports, and leasing a home in the Woodland Middle School zone to keep G.E.
enrolled during seventh grade. (Id.) It also seeks additional compensatory education, attorneys fees
and costs, and any further equitable relief that may be necessary. (Id.) WCS filed an answer to the
complaint (Doc. No. 13) and the sealed administrative record (Doc. Nos. 15–15-17). G.E. and S.B.
filed a motion to supplement the administrative record (Doc. No. 19), which the Court denied
without prejudice (Doc. No. 22).
II. Analysis
A. G.E. and S.B.’s § 504 and Title II Claims
G.E. and S.B.’s motion for judgment on the administrative record alleges that WCS
violated § 504’s child find provision for G.E.’s fifth-grade and sixth-grade years and otherwise
discriminated against G.E. in violation of § 504 and Title II. (Doc. No. 1.) To prevail on their § 504
claims, G.E. and S.B. must proffer evidence that satisfies each of the following four elements:

(1) The plaintiff is a “handicapped person” under the Act; (2) The plaintiff is
“otherwise qualified” for participation in the program; (3) The plaintiff is being
excluded from participation in, or being denied the benefits of, or being subjected
to discrimination under the program solely by reason of his handicap; and (4) The
relevant program or activity is receiving Federal financial assistance.
G.C. v. Owensboro Pub. Schs., 711 F.3d 623, 635 (6th Cir. 2013) (quoting Campbell v. Bd. of
Educ. of Centerline Sch. Dist., 58 F. App’x 162, 165 (6th Cir. 2003)). To prevail on their Title II
claims, they must proffer evidence that satisfies the first three elements. See McPherson, 119 F.3d
at 460.
The Sixth Circuit has held that satisfying the third element—showing that the defendant’s
challenged actions were discriminatory—“‘requires that either bad faith or gross misjudgment
must be shown before a § 504 violation can be made out, at least in the context of education of
handicapped children.’” G.C., 711 F.3d at 635 (quoting Campbell, 58 F. App’x at 167). The Eighth
Circuit explained the reasons underlying this requirement in Monahan v. Nebraska:
The reference in the Rehabilitation Act to “discrimination” must require, we think,
something more than an incorrect evaluation, or a substantively faulty
individualized education plan, in order for liability to exist. Experts often disagree
on what the special needs of a handicapped child are, and the educational placement
of such children is often necessarily an arguable matter. That a court may, after
hearing evidence and argument, come to the conclusion that an incorrect evaluation
has been made, and that a different placement must be required under [the IDEA],
is not necessarily the same thing as a holding that a handicapped child has been
discriminated against solely by reason of his or her handicap. An evaluation, in
other words, is not discriminatory merely because a court would have evaluated the
child differently.
. . .
So long as the state officials involved have exercised professional judgment, in such
a way as not to depart grossly from accepted standards among educational
professionals, we cannot believe that Congress intended to create liability under
[§] 504.
687 F.2d 1164, 1170, 1171 (8th Cir. 1982), cert. denied, 460 U.S. 1012 (1983); see also Campbell,
58 F. App’x at 167 (quoting id.).
G.E. and S.B. have not argued or identified record evidence to show that WCS acted in bad
faith or with gross misjudgment by failing to evaluate G.E. for § 504 eligibility or by refusing to
provide him with reasonable accommodations under § 504 or Title II in fifth and sixth grade.
Instead, they argue that they can succeed on their discrimination claims without making a showing
of intent because “the Sixth Circuit distinguishes two methods for proving discrimination:
intentional discrimination and failure to make reasonable accommodation.” (Doc. No. 24,
PageID# 7382.) G.E. and S.B.’s reliance on McPherson v. Michigan High School Athletic
Association, Inc., to support this argument is misplaced. (Doc. No. 24.) In McPherson, a plaintiff
with learning disabilities who had been required to repeat eleventh grade asserted § 504 and Title II
challenges to the Michigan High School Athletic Association’s (MHSAA) rule that any student
who had completed eight semesters of high school was ineligible for interscholastic sports
competition. 119 F.3d at 455–56. In analyzing the plaintiff’s claims, the Sixth Circuit explained
that
there are two methods that would allow the plaintiff to demonstrate that the
MHSAA’s actions were taken because of his disability: either (1) by offering
evidence that learning disabilities were actually considered by the MHSAA in
formulating or implementing the eight-semester rule, or (2) by showing that the
MHSAA could have reasonably accommodated his disability, but refused to do so.
Id. at 460. The court found that the plaintiff failed to make either showing. Id. at 460–63.
Nothing in the McPherson court’s analysis conflicts with the Sixth Circuit’s later holding
in G.C. that, “‘at least in the context of education of handicapped children[,]’” the plaintiff must
prove discrimination by showing “‘either bad faith or gross misjudgment . . . .’” 711 F.3d at 635
(emphasis added) (quoting Campbell, 58 F. App’x at 167). “Section 504 requires bad faith or gross

misjudgment in the context of education of children with disabilities because to provide otherwise
would conflict with the IDEA and with the principles of federalism that underly its
implementation.” D.S. ex rel. R.S. v. Knox Cnty., No. 3:20-cv-240, 2021 WL 6496726, at *17 (E.D.
Tenn. June 21, 2021) (first citing Reid-Witt ex rel. C.W. v. District of Columbia, 486 F. Supp. 3d
1, 7–9 (D.D.C. 2020); then citing I.Z.M. v. Rosemount—Apple Valley—Eagan Pub. Schs., 863 F.3d
966, 973 (8th Cir. 2017); and then citing D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629
F.3d 450, 454–55 (5th Cir. 2010)). Where, as here, plaintiffs do not present record evidence
showing bad faith or gross misjudgment, their § 504 and Title II claims must fail. G.C., 711 F.3d
at 635; D.S., 2021 WL 6496726, at *17.
G.E. and D.B. further rely on L.H. v. Hamilton County Department of Education, No. 1:14–

cv–126, 2017 WL 4558020 (E.D. Tenn. July 17, 2017), for the proposition that a showing of
discriminatory intent is not necessarily required when plaintiffs seek only equitable remedies and
not damages for their § 504 and Title II claims. (Doc. No. 24.) The L.H. court found that “[t]he
Sixth Circuit has yet to speak directly to whether discriminatory intent is required for a plaintiff to
obtain an equitable remedy under Title II or Section 504,” and relied on I.L. v. Knox County Board
of Education, 257 F. Supp. 3d 946 (E.D. Tenn. 2017), for the proposition that “[t]here is nothing
to indicate that a plaintiff must ever prove intentional discrimination—or deliberate indifference—
under Title II and Section 504.” 2017 WL 4558020, at *4 (alteration in original) (quoting I.L., 257
F. Supp. 3d at 969). Neither L.H. nor I.L. addresses the Sixth Circuit’s controlling holding in G.C.
The plaintiff in G.C. sought declaratory and injunctive relief in addition to damages. 711 F.3d at
628. The Sixth Circuit made no distinction between the plaintiff’s claims for equitable relief and
damages in holding that the plaintiff’s § 504 claims failed because the plaintiff had not shown
sufficient evidence of bad faith or gross misjudgment. Id. at 635. This Court is bound by G.C. and

therefore declines to follow L.H. and I.L. See D.S., 2021 WL 6496726, at *17 (declining to apply
L.H. and I.L. because “[t]he Court is bound by Sixth Circuit precedent, and the Court sees no
reason to distinguish or question the continuing validity of G.C.”). Because G.E. and S.B. cannot
show bad faith or gross misjudgment on the part of WCS, G.E. and S.B.’s § 504 and Title II claims
must fail. G.C., 711 F.3d at 635.
B. G.E. and S.B.’s IDEA Claim
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). 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.
G.E. and S.B. argue that, contrary to the ALJ’s findings, G.E. should have received a
disability classification of emotional disturbance or other health impairment entitling him to an
IEP under the IDEA in the seventh grade for the 2019–2020 school year. (Doc. Nos. 1, 24.)
Eligibility classification arguments relate to procedural IDEA violations. See, e.g., L.H. v.

Hamilton Cnty. Dep’t of Educ., 900 F.3d 779, 789 (6th Cir. 2018) (“Procedural violations generally
concern ‘the preparation of an IEP,’ such as the evaluation, placement, and IEP-formation
procedures outlined in [20 U.S.C.] § 1414.” (quoting Rowley, 458 U.S. at 206)); Doe ex rel. Doe
v. Defendant I, 898 F.2d 1186, 1190 (6th Cir. 1990) (explaining that procedural claims concern
“the process by which the IEP is produced, rather than the myriad of technical items that must be
included in the written document”). “A finding of procedural violations does not necessarily entitle
[plaintiffs] to relief.” Deal, 392 F.3d at 854. “[R]ather, a school district’s failure to comply with
the procedural requirements of the [IDEA] will constitute a denial of a FAPE only if such violation
causes substantive harm to the child or his parents.” Knable, 238 F.3d at 765. “Substantive harm
occurs when the procedural violations in question seriously infringe upon the parents’ opportunity
to participate in the IEP process” or “deprive an eligible student of an individualized education
program or result in the loss of educational opportunity . . . .” Id. at 765–66.
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[.]” 20 U.S.C.
§ 1412(a)(3)(A). In conducting evaluations, a local educational agency must “use a variety of
assessment tools and strategies to gather relevant functional, developmental, and academic
information, including information provided by the parent[;]” “not use any single measure or
assessment as the sole criterion for determining whether a child is a child with a disability or
determining an appropriate educational program for the child;” and “use technically sound
instruments that may assess the relative contribution of cognitive and behavioral factors, in
addition to physical or developmental factors.” Id. § 1414(b)(2)(A)–(C); see also 34 C.F.R.
§ 300.304.
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).
G.E. and S.B. argue that, based on the record evidence of G.E.’s anxiety and absences,
WCS should have classified G.E. with emotional disturbance or other health impairment during
the September 2019 IDEA eligibility evaluation. (Doc. No. 24.) WCS responds that the data did
not support an emotional disturbance or other health impairment classification at the time because
the evidence did not show that anxiety was the primary cause of G.E.’s absences and, in any event,
G.E.’s academic performance was not adversely affected to the extent that he needed special
education and related services. (Doc. No. 27.)
The ALJ analyzed G.E.’s IDEA eligibility classification claim as follows:
Eligibility under the IDEA
WCS conducted thorough evaluations of G.E. in the fall of 2019. The IDEA
requires that a school district “use a variety of assessment tools and strategies to
gather relevant functional, developmental, and academic information” when
conducting an initial evaluation to determine whether a student is a child with a
disability. 20 U.S.C. § 1414(b)(2)(A). Furthermore, the district shall “not use any
single measure or assessment as the sole criterion for determining whether a child
is a child with a disability or determining an appropriate educational program for
the child.” 20 U.S.C. § 1414(b)(2)(B). Ultimately, a district’s evaluation is held to
a standard of “reasonableness.” J.S. v. Shoreline Dist., 220 F. Supp. 2d 1175 (W.D.
Wash. 2002) (quoting Rowley, 458 U.S. at 205–07).
Here, the school psychologist, speech language pathologist, and
occupational therapist conducted extremely thorough evaluations of G.E. The
evaluations were based on and reported the following information and data: review
of relevant medical and developmental history, attendance history, school transfers,
nurse visits over a three year period, review of his cumulative file for behavioral
concerns and grade reports, a private neuropsychological evaluation by Dr. Brittany
Paul, history of TCAP (state assessment) scores, recent history of district level
assessments and benchmark scores (Achieve3000 and STAR), direct classroom
observations by four different observers occurring in multiple settings (social
studies, lunch, Warrior period, chemistry, hallway, math), teacher input/interviews
(including sixth- and seventh-grade teachers), vision/hearing screenings, student
interview, observations during testing sessions, standardized cognitive assessment,
standardized achievement assessment, social-emotional and behavioral ratings
completed by S.B., G.E., and multiple sixth-grade teachers, executive functioning
ratings scales completed by S.B., G.E., and multiple sixth-grade teachers, several
rating scales completed by G.E. specifically targeting experiences related to
depression and anxiety, autism rating scales completed by S.B. and multiple
seventh-grade teachers, review of motor/physical evaluations, visual motor
assessment, adaptive rating scales completed by S.B. and multiple sixth-grade
teachers, pragmatic language assessment, social skills rating scales completed by
multiple sixth- and seventh-grade teachers, and sensory ratings scales completed
by S.B., G.E., and G.E.’s seventh-grade teachers. Not only did WCS use a variety
of assessment tools and standards, but WCS’s evaluators were extremely thorough
in their data collection and presentation of the data to the IEP team.[2]
G.E.’s IEP team, comprised of the parent, a regular education teacher, two
special education teachers, interpreters of evaluation results, LEA representatives,
school counselor/504 coordinator, and related service providers met on September
18, 2019 to review this evaluation data and determine G.E.’s eligibility under the
IDEA. Although WCS also believed that data from a clinical psychological
evaluation was needed to obtain information regarding G.E.’s mental health needs
and understand differences in diagnosis from different providers and why parental
reports of G.E.’s emotional functioning outside of the school environment were
drastically different than his functioning in the educational setting, G.E.’s parent
refused consent for such evaluation, preventing the team from consideration of such
data when determining G.E.’s eligibility. WCS satisfied its obligations by
evaluating G.E. and using multiple sources of data across multiple settings to
determine whether G.E. was eligible under the IDEA. Any information and data
later received from the clinical psychological evaluation was unavailable to the
team in September of 2019.
An eligibility determination is “a snapshot of the student’s condition at the
time of the eligibility determination.” See Lisa M. v. Leander Indp. Sch. Dist., 924
F.3d 205, 215 (5th Cir. 2019). “At the eligibility determination moment, therefore,
incorporating events that occur afterwards would be incongruous and, indeed, can
only invite Monday morning quarterbacking.” Id. “Subsequent events do not
determine ex ante reasonableness in the eligibility context.” Id. at 214. Thus, the
“school district’s eligibility determination should be assessed ‘at the time of the
child’s evaluation and not from the perspective of a later time with the benefit of
hindsight.” Id., quoting L.J., 850 F.3d at 1004; D.L. v. Clear Creek Indep. Sch.
Dist., 695 Fed. Appx. 733, 738 (5th Cir. 2017) (citations omitted).[3]
Upon consideration of the available data from the comprehensive
evaluation, the IEP team correctly determined G.E. was not eligible as a student
with a disability under the IDEA at such time. The IEP team considered three
possible areas of eligibility: (1) autism, (2) other health impairment (OHI), and
(3) emotional disturbance (ED). To be eligible as a child with a disability under the
IDEA, the child must first meet this first prong of eligibility—meeting the State’s

2 “WCS also attempted to obtain additional data from a clinical psychological evaluation,
for which S.B. refused to provide consent.” (Doc. No. 15-17, PageID# 7218 n.10.)
3 “The fact that G.E. was later hospitalized does not make the eligibility determination
inappropriate. See D.L. v. Clear Creek Indep. Sch. Dist., 695 Fed. Appx. 733, 738 (5th Cir. 2017)
(‘That [the student] subsequently spiraled does not undermine that earlier determination.’).” (Doc.
No. 15-17, PageID# 7219, n.11.)
definition for one of the identified categories of disability. 34 C.F.R. § 300.8. G.E.
did not meet this first prong.
The team (including S.B.) agreed that G.E. did not meet the State’s criteria
for autism. Although S.B. disagreed, the team determined G.E. did not meet the
eligibility requirements for an OHI because the data did not support a health
problem that caused limited strength, vitality or alertness resulting in impaired
organizational or work skills, inability to manage or complete tasks, excessive
health related absenteeism, and/or medications that affect cognitive functioning.[4]
While the team agreed that G.E. displayed characteristics of anxiety in the home
and school setting, the data did not support that his anxiety adversely impacted his
educational performance in his learning environment. The IEP team agreed that
G.E.’s excessive absenteeism adversely impacted his educational performance;
however, the data did not support S.B.’s position that G.E.’s absences were
primarily caused by his anxiety. G.E.’s absenteeism adversely impacted his
educational performance because he was not receiving the instruction, which would
have an impact on nearly every student, rather than because he lacked the ability to
receive the instruction. However, even with G.E.’s history of excessive
absenteeism, the data showed that G.E. met grade level expectations through the
general education supports provided to all students; thus, his absences did not
adversely impact his performance such that he needed special education and related
services.
Although S.B. disagreed, the team determined that G.E. did not meet the
eligibility requirements for ED because data did not support that G.E. met one of
the characteristics of an ED to a marked degree and over an extended period of
time. In determining the requirements for special education eligibility as a student
with an ED, the State of Tennessee requires that the school district obtain a
“comprehensive social history/assessment . . . which includes (a) family history,
(b) family-social interactions, (c) developmental history, [and] (d) medical history
(including mental health).” Furthermore, the evaluation process requires the team
to ensure that the evaluation is sensitive to “environmental factors.” The definition
of ED takes into consideration that situational factors may cause a child to engage
in some atypical behaviors or emotions without being eligible as a student with ED
by requiring the conditions over a long period of time and to a marked degree.
Here, consideration of all the data, including social-emotional behavior
ratings, nurse notes, attendance records, observations, and teacher interviews did
not indicate an inability to learn, an inability to build or maintain satisfactory
interpersonal relationships, inappropriate types of behavior or feelings, a general
pervasive mood of unhappiness or depression, or a tendency to develop physical

4 “While there was conflicting medical information regarding whether G.E. had ADHD, the
team reviewed assessment data related to ADHD like characteristics, which did not support a
history of such difficulties to any marked degree in the educational setting.” (Doc. No. 15-17,
PageID# 7220 n.12.)
symptoms or fears associated with personnel or school problems that occurred to a
marked degree, over an extended period of time that adversely impacted G.E.’s
educational performance. Over the previous year, the data only indicated a couple
of nurse visits related to anxiety, only one visit to the school counselor related to
anxiety, only a couple of absences or tardies/early dismissals due to anxiety, and
no difficulties (to a marked degree) in the educational environment (almost all of
which had occurred within a month of the eligibility determination). Therefore,
G.E. did not meet the eligibility requirements for ED and was not eligible as a
student with autism, OHI, or ED because he did not meet the requirements of said
disabilities. While Dr. Sherwood would later opine that G.E. met the criteria for ED
at the time of Dr. Sherwood’s assessment in August of 2020, and perhaps as early
as August 2019, the IEP could not take this information into account at the time of
the September 2019 eligibility meeting since Dr. Sherwood’s evaluation had not
yet been conducted. Further, the team could not know that G.E.’s mental health
would decline rapidly in the coming weeks. The team thoroughly and carefully
considered all of the information it had available at the time and reached the correct
conclusion—that G.E. was not eligible for special education services under the
IDEA – based on that information.
Even if G.E. had met the first prong of eligibility—having a disability –
there was no adverse impact on his educational performance requiring special
education services under the second prong. The fact that a child may have a
disability does not necessarily make him “a child with a disability” eligible for
special education services under the IDEA because the student must also need
special education and related services. A.P., 572 F. Supp. 2d at 225. The question
of educational need involves consultation of “a variety of sources, including
aptitude and achievement tests, parent input, and teacher recommendations, as well
as information about the child’s physical condition, social or cultural background,
and adaptive behavior . . . .” M.P. BNF K.S, No. 2:15-CV-233, 2016 WL 632032,
at *5 (citing 34 C.F.R. § 300.306(c)(1)(i)). Moreover, the standard is not whether
the student could “benefit” from special education services or whether the student
could meet his potential with special education services. M.A., 980 F. Supp. 2d at
274–75. Instead, the standard is whether the student needs special education and
related services to progress in the general education setting. Hupp v. Switzerland of
Ohio Local Sch. Dist., 912 F. Supp. 2d 572, 595 (S.D. Ohio 2012) (finding that the
issue before the Court was not whether the student would “benefit” from special
education services, but whether the special education services were necessary for
the student to receive FAPE). “‘Need’ should not be measured according to
‘whether or not [a student’s] potential could be maximized via special education
services.’” See Lisa M., at 216, quoting Alvin Indep. Sch. Dist., 503 F.3d at 383;
see L.M., 478 F.3d at 314, quoting Rowley, 458 U.S. at 201 (“There is no additional
requirement, however, ‘that the services so provided be sufficient to maximize each
child’s potential commensurate with the opportunity provided other children.’”).
Where a student is not in need of special education and related services, he cannot
be found eligible under the IDEA.” A.P., 572 F. Supp. 2d at 225 (citing 20 U.S.C.
§ 1412(a)(3)(A)).
G.E. did not require special education and related services, as he was
making passing grades, was performing successfully on state and district level
assessments, and was successful socially and behaviorally in the educational
setting. There is no record that supports the contention that G.E. was struggling
educationally.
Finally, WCS appropriately considered Dr. Paul’s independent evaluation.
“Consideration,” under the law, does not even require a substantive discussion of
the independent evaluation during the IEP meeting. Mr. P. v. West Hartford Bd. of
Educ., 885 F.3d 735, 753 (2d Cir. 2018). The IEP team expressly considered
Dr. Paul’s evaluation report by having the school psychologist thoroughly review
it and discussing it during the IEP meeting. The school psychologist references
Dr. Paul’s evaluation results within WCS’s psychoeducational report. Therefore,
Petitioners failed to prove that the team did not adequately consider Dr. Paul’s
evaluation.
(Doc. No. 15-17, PageID# 7217–23.)
IDEA regulations define emotional disturbance and other health impairment as follows:
(4)(i) Emotional disturbance means a condition exhibiting one or more of the
following characteristics over a long period of time and to a marked degree that
adversely affects a child’s educational performance:
(A) An inability to learn that cannot be explained by intellectual, sensory,
or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships
with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(ii) Emotional disturbance includes schizophrenia. The term does not apply to
children who are socially maladjusted, unless it is determined that they have an
emotional disturbance under paragraph (c)(4)(i) of this section.
. . .
(9) Other health impairment means having limited strength, vitality, or alertness,
including a heightened alertness to environmental stimuli, that results in limited
alertness with respect to the educational environment, that—
(i) Is due to chronic or acute health problems such as asthma, attention deficit
disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart
condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle
cell anemia, and Tourette syndrome; and
(ii) Adversely affects a child’s educational performance.
34 C.F.R. § 300.8(c)(4)(i)–(ii), (9)(i)–(ii).
The relevant Tennessee educational regulations provide similar definitions:
(7) “Emotional Disturbance” Emotional disturbance means a condition exhibiting
one (1) or more of the following characteristics over a long period of time and
to a marked degree that adversely affects a child’s educational performance:
(a) Inability to learn which cannot be explained by intellectual, sensory, or
health factors;
(b) Inability to build or maintain satisfactory interpersonal relationships with
peers and school personnel;
(c) Inappropriate types of behavior or feelings under normal circumstances;
(d) General pervasive mood of unhappiness or depression;
(e) Tendency to develop physical symptoms or fears associated with personal
or school problems.
Emotional Disturbance includes schizophrenia. The term does not apply to
children who are socially maladjusted, unless it is determined that they have
an emotional disturbance.
. . .
(14) “Other Health Impairment” means having limited strength, vitality or
alertness, including a heightened alertness to environmental stimuli, that results
in limited alertness with respect to the educational environment, that is due to
chronic or acute health problems such as asthma, Attention Deficit
Hyperactivity Disorder, diabetes, epilepsy, a heart condition, hemophilia, lead
poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and
Tourette’s Syndrome that adversely affects a child’s educational performance.
A child is “Other Health Impaired” who has chronic or acute health problems
that require specially designed instruction due to:
(a) Impaired organizational or work skills;
(b) Inability to manage or complete tasks;
(c) Excessive health related absenteeism; or
(d) Medications that affect cognitive functioning.
Tenn. Comp. R. & Regs. 0520-01-09-.02(7), (14) (2019).
Neither the IDEA nor its implementing regulations define the terms “adverse effect on
educational performance[.]” J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 66 (2d Cir. 2000);
see also Q.W. ex rel. M.W. v. Bd. of Educ. of Fayette Cnty., 630 F. App’x 580, 582 (6th Cir. 2015).

While states may choose “to give substance to these terms[,]” J.D., 224 F.3d at 66, the relevant
Tennessee educational regulations do not, see Tenn. Comp. R. & Regs 0520-01-09-.02 (2019).
The Sixth Circuit held in Q.W. that, “[a]bsent a contrary directive” in state law, “‘educational
performance’ may encompass more than academic achievement[,]” but “the plain meaning of
‘educational performance’ suggests school-based evaluation.” 630 F. App’x at 582–83.
Specifically, under Q.W., educational performance means “the classroom and school experience—
to the exclusion of social or behavioral deficits that were not shown to interfere with [a student’s]
school-based performance.” Id. at 583.
In support of their argument that G.E. was entitled to an IEP in seventh grade, G.E. and

S.B. point to record evidence of S.B.’s testimony regarding G.E.’s obsessive compulsive behaviors
at home; the results of a neuropsychological evaluation by Dr. Brittany Paul; testimony from WCS
representative Maria Griego that, in the late summer or early fall of 2020, G.E. might have been
eligible for an emotional disturbance classification; G.E. and S.B.’s expert psychologist
Dr. Charles Ihrig’s testimony about G.E.’s anxiety; G.E.’s self reports; testimony from G.E.’s
treating psychiatrist Dr. Scott McKay about G.E.’s anxiety; testimony from WCS’s expert
Dr. Sherwood about his evaluation of G.E. in August 2020; and WCS’s provision of specially
designed homebound instruction from October 2019 through February 2020 while G.E. was
enrolled in the Rogers Behavioral Health partial hospitalization program. (Doc. No. 24.)
None of this evidence demonstrates an adverse impact on G.E.’s educational performance
or a need for special education and related services prior to the IEP team meeting on September
18, 2019. The record evidence shows that, even with his history of absences, G.E.’s standardized
test scores were at or above grade level, he never failed a class, his overall performance was typical

of a child with his IQ, and he was generally successful socially and behaviorally in the educational
setting. G.E. and S.B. therefore have not carried their burden to show, by a preponderance of the
evidence, the required adverse effect on G.E.’s educational performance to demonstrate that WCS
should have classified G.E. with an emotional disturbance or other health impairment during the
September 2019 IDEA evaluation. Nor have they carried their burden to show that G.E. needed
special education services and related services to progress in the general education setting at the
time of that evaluation.
Further, even if G.E. and S.B. had shown that WCS’s failure to classify G.E. with
emotional disturbance or other health impairment in September 2019 was a procedural violation
of the IDEA, they have not shown by a preponderance of the evidence that this failure caused

substantive harm. They argue generally that WCS’s failure to classify G.E. as eligible for an IEP
under the IDEA led to his partial hospitalization, but they have not pointed to any record evidence
or legal authority to show a sufficient connection between the lack of an IEP and G.E.’s enrollment
in the Rogers Behavioral Health partial hospitalization program.
III. Recommendation
For these reasons, the Magistrate Judge RECOMMENDS that G.E. and S.B.’s motion for
judgment on the administrative record (Doc. No. 24) 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 27th day of February, 2023.

litornotboir
ALISTA! . NEWBERN
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10438475. Public record. Not legal advice.