Toni Jones v. Metropolitan Government of Nashville and Davidson County

04/13/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 21, 2017 Session

TONI JONES v. METROPOLITAN GOVERNMENT OF NASHVILLE

AND DAVIDSON COUNTY

Appeal from the Chancery Court for Davidson County

No. 151475III Ellen H. Lyle, Chancellor

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No. M2016-00483-COA-R3-CV

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This is an appeal from the grant of Appellee’s Tennessee Rule of Civil Procedure

12.02(6) motion to dismiss Appellant’s 42 U.S.C. §1983 claim for alleged violation of

her substantive and procedural due process rights to a public education. Appellant was

removed from her Algebra I class and placed in a computer-based course. Because the

right to a public education does not include a particular course placement or teaching

method, Appellant’s complaint fails to state a claim for relief. Affirmed and remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

William Gary Blackburn and Bryant Beatty Kroll, Nashville, Tennessee, for the

appellant, Toni Jones.

Melissa S. Roberge and Catherine J. Pham, Nashville, Tennessee, for the appellee,

Metropolitan Government of Nashville and Davidson Co.

Richard L. Colbert and Nina M. Eiler, Nashville, Tennessee, Amicus Curiae for

Tennessee Education Association.

OPINION

I. Background

Appellant Toni Jones is a former student of Pearl-Cohn Comprehensive High

School, a magnet school operating within the Metropolitan Government of Nashville and

Davidson County’s (“Metro,” or “Appellee”) public school system. During the 2013-

2014 school year, Ms. Jones was enrolled in Algebra I. While enrolled in Algebra I, Ms.

Jones was required to take practice tests known as Discovery Education Assessments,

which were administered as a predictor of a student’s performance on the final end of

course exam. The end of the course exam is used to measure success within the

individual Metro public schools. Ms. Jones did poorly on the practice tests and, in the

second semester of the 2013-2014 school year, she was moved from the Algebra I class

to a “remedial credit recovery program,” which was a computer-based course. The

following school year, Ms. Jones was placed in a Geometry class, which she failed.

On December 7, 2015, Ms. Jones filed suit against Metro, claiming violation of

her procedural and substantive due process rights. Ms. Jones’ causes of action are based

on the following averments in her complaint:

11. . . . [Ms. Jones] was placed in a remedial “credit recovery” program,

and instructed to complete a computer-based “A+ program” without any

direct instruction from an actual teacher, thus depriving her of the education

she was entitled to receive.

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15. [Ms. Jones] had a constitutionally protected property interest in her

public education, of which she has been deprived in an arbitrary and

capricious manner. [Metro’s] actions also have unusually harsh

consequences because [Ms. Jones] was not promoted to the next grade level

and has been deprived of her high school diploma.

16. Without any advance notice and without any opportunity to review

[Metro’s] decision to retake the practice exam, [Ms. Jones] was pulled from

her courses at Pearl-Cohn High School, was not promoted to the next grade

level, and was denied the benefit of her constitutionally-protected property

interest in a free and appropriate public education.

17. As a direct and proximate result of [Metro’s] unconstitutional policies

and practices, [Metro] violated [Ms. Jones’] procedural due process right to

notice and an opportunity to be heard prior to being deprived of the benefit

of her public education.

18. Because [Ms. Jones] was deprived of the benefit of her public

education, [Ms. Jones] was also denied a substantive due process right

guaranteed by the Fourteenth Amendment of the United States

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Constitution.

19. [Metro’s] policy of pulling students from class was done to artificially

inflate a school’s End of Course results, to the detriment of [Ms. Jones’]

procedural and substantive due process rights, and [Metro’s] actions were

therefore arbitrary, capricious, fundamentally unfair, and fail to achieve a

legitimate state purpose.

On January 27, 2016, Metro filed a Tennessee Rule of Civil Procedure 12.02(6)

motion to dismiss the complaint for failure to state a claim on which relief could be

granted. In relevant part, Appellee argued that Ms. Jones’ complaint failed to state a

claim because a student does not have a constitutional right to be promoted to the next

grade level or to receive a particular course placement. On February 8, 2016, Ms. Jones

filed a response in opposition to the motion to dismiss. Concurrent with her response,

Ms. Jones filed a motion for partial summary judgment.

On February 12, 2016, the trial court heard Metro’s motion to dismiss. By order

of February 24, 2016, the trial court granted the motion to dismiss, finding, in relevant

part, that “the allegations of the complaint do not rise to the level of a constitutional

property right. The property interest at stake . . . is the right to a public education, not the

right to a particular course-placement, or other aspects of an education that the student

believes to be the most appropriate.” Ms. Jones appeals.

II. Issues

Ms. Jones raises two issues as stated in her brief:

1. Whether the right to a teacher is inherently part of a child’s right to a

free public education under the Tennessee and Federal Constitutions?

2. Whether a complaint that alleges that a child has been arbitrarily

removed from a required course which she was passing and denied a

teacher fails as a matter of law to state a claim under Rule 12.02(6),

Tenn. R. Civ. P.

III. Standard of Review

The resolution of a 12.02(6) motion to dismiss is determined by an examination of

the pleadings alone. Leggett v. Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn. 2010);

Trau–Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). A

defendant who files a motion to dismiss “‘admits the truth of all of the relevant and

material allegations contained in the complaint, but ... asserts that the allegations fail to

establish a cause of action.’” Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854

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(Tenn. 2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512,

516 (Tenn. 2005)).

In considering a motion to dismiss, courts “must construe the complaint liberally,

presuming all factual allegations to be true and giving the plaintiff the benefit of all

reasonable inferences.” Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007)

(citing Trau–Med., 71 S.W.3d at 696). A trial court should grant a motion to dismiss

“only when it appears that the plaintiff can prove no set of facts in support of the claim

that would entitle the plaintiff to relief.” Crews v. Buckman Labs Int'l, Inc., 78 S.W.3d

852, 857 (Tenn. 2002); see also Lanier v. Rains, 229 S.W.3d 656, 660 (Tenn. 2007). We

review the trial court’s legal conclusions regarding the adequacy of the complaint de

novo with no presumption that the trial court’s decision was correct. Webb v. Nashville

Area Habitat for Humanity, Inc., 346 S.W.3d 422, 429 (Tenn. 2011).

IV. Analysis

As set out in full context above, the crux of Ms. Jones’ complaint is that she “was

not promoted to the next grade level and has been deprived of her high school diploma.”

Because she “was not promoted to the next grade level,” Ms. Jones contends that she

“was denied the benefit of her constitutionally-protected property interest in a free and

appropriate public education.” In other words, Ms. Jones’ complaint alleges a

deprivation of her right to a public education. However, on appeal, as evidenced by her

statement of the issues and her arguments before this Court, Ms. Jones couches her

complaint in terms of a deprivation of a property right in being taught by an actual

teacher as opposed to a computer based program. In her brief, Ms. Jones relies on the

Tennessee Supreme Court’s trilogy of opinions in the Tennessee Small Sch. Sys. v.

McWherter case. The Small Schools case involved disparities arising from funding

inequities between rural and urban schools. In Tennessee Small Sch. Sys. v. McWherter,

851 S.W.2d 139 (Tenn. 1993) (“Small Schools I”), the defendants argued that the

Tennessee Constitution did not guarantee an education that is substantially the same as

the education received by children in other counties. The Tennessee Supreme Court

disagreed, holding that

[t]he constitutional mandate that the General Assembly shall provide for a

system of free public schools guarantees to all children of school age in the

state the opportunity to obtain an education. The provisions of the

constitution guaranteeing equal protection of the law to all citizens, require

that the educational opportunities provided by the system of free public

schools be substantially equal. The constitution, therefore, imposes upon

the General Assembly the obligation to maintain and support a system of

free public schools that affords substantially equal educational

opportunities to all students.

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Small Schools I, 851 S.W.2d at 140-41. The Small Schools case returned to the

Tennessee Supreme Court on two more occasions due to the Legislature’s attempt to

satisfy the Court’s mandate without consideration of equality in teachers’ salaries. In

Tennessee Small Sch. Sys. v. McWherter, 894 S.W.2d 734 (Tenn. 1995) (“Small

Schools II”), the State argued that increasing and equalizing teachers’ salaries did not

affect student performance and was, therefore, not a component of a student’s right to a

public education. The Supreme Court disagreed, stating:

The omission of a requirement for equalizing teachers’ salaries is a

significant defect in the BEP [i.e., Basic Education Program]. The rationale

supporting the inclusion of the other important factors constituting the plan

is equally applicable to the inclusion of teachers’ salaries. Teachers,

obviously, are the most important component of any education plan or

system, and compensation is, at least, a significant factor determining a

teacher's place of employment. The costs of teachers’ compensation and

benefits is the major item in every education budget. The failure to provide

for the equalization of teachers’ salaries according to the BEP formula, puts

the entire plan at risk functionally and, therefore, legally.

Small Schools II, 894 S.W.2d at 738 (emphasis added). Following the Court’s holding,

in Small Schools II, the State proposed a one-time equalization of teachers’ salaries,

without including those salaries in the BEP formula. Again, the Tennessee Supreme

Court granted permission to appeal. In Tennessee Small Sch. Sys. v. McWherter, 91

S.W.3d 232 (Tenn. 2002) (“Small Schools III”), the Court explained:

We can think of no rational basis, and the defendants have not suggested

one, for structuring a basic education program where all of its components,

including salaries for custodians, secretaries, nurses, librarians, social

workers, principals and their assistants, assessment personnel, coordinators,

supervisors, psychologists, and superintendents, are cost-driven, except for

the largest and most important component of all, the cost of providing

teachers. It seems to us, as we said in Small Schools II, that the rationale for

cost determination and annual review of the BEP components applies with

equal if not greater force to teachers’ salaries, for it is undeniable that

teachers are the most important component of any effective education

plan, and that their salaries, a major item in every education budget, are a

significant factor in determining where teachers choose to work. Small

Schools II, 894 S.W.2d at 738. We recognized this fact seven years ago in

Small Schools II, and we strongly reiterate it again today. Id.

Small Schools III, 91 S.W.3d at 240 (emphasis added). Relying on the emphasized

language in Small Schools II and Small Schools III, Ms. Jones argues, on appeal, that

the right to a public education includes a right to an actual teacher.

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In the first instance, in reviewing a trial court’s decision on a Tennessee Rule of

Civil Procedure 12.02(6) motion, we are limited to the averments set out in the complaint

and any reasonable inferences to be drawn from those averments. Giving Ms. Jones the

benefit of all reasonable inferences, we conclude that her complaint is based squarely on

allegations of deprivation of a property right in a public education, not in the individual

components that she believes to be most appropriate, i.e., teacher versus computer.

Regardless, contrary to Ms. Jones’ argument, although the Small Schools Court

recognized the importance of teachers in education, the Small Schools trilogy does not

stand for the proposition that the right to a public education must include a classroom

teacher. Metro’s decision to use computers, with a supervising teacher present in the

classroom, as opposed to a class taught, in a traditional sense, by a teacher, is a

discretionary decision that directly implicates the type of teaching that is appropriate for

the student. Courts will not interfere in the resolution of conflicts that arise in the daily

operation of schools, and no property right is triggered when a student is denied the

“type” of education that they believe is appropriate for them. As explained by the Sixth

Circuit Court of Appeals in Gallagher v. Pontiac Sch. Dist, 807 F.2d 75, 78-79 (6th Cir.

1986):

Plaintiff claims that defendants violated the due process clause by

failing to provide him with education commensurate with his needs and by

failing to abide by procedural safeguards. To establish a deprivation of an

interest protected by the due process clause, plaintiff must show that he was

excluded from defendants’ programs. Plaintiff cites several cases that have

recognized due process rights in an education context, but these cases are

distinguishable on the basis that each cited case concerned an exclusion

from school. See Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43

L.Ed.2d 214 (1975) (expulsion); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729,

42 L.Ed.2d 725 (1975) (temporary expulsion/suspension); Tinker v. Des

Moines Indep. Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21

L.Ed.2d 222 (1969) (suspension).

Plaintiff contends that he was in effect “excluded” from defendants’

programs because he had no communicative skills and sat in the classroom

unaware of what was happening. According to plaintiff he was thus

“deprived” and “excluded” even though he was allowed to enter the

classroom. Plaintiff’s use of semantics in this regard, however, does not

alter the substance of his claim, which is that he was provided no

appropriate education. Courts have repeatedly rejected the notion that

the due process clause secures a right to the most appropriate

education. See, e.g., O'Connor v. Bd. of Educ. of School Dist. No. 23, 645

F.2d 578, 582 (7th Cir.), cert. denied, 454 U.S. 1084, 102 S.Ct. 641, 70

L.Ed.2d 619 (1981); Johnston v. Ann Arbor Public Schools, 569 F. Supp.

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1502, 1505–06 (E.D.Mich.1983); Davis v. Maine Endwell Cent. School

Dist., 542 F. Supp. 1257, 1263; (N.D.N.Y.1982); Johnpoll v. Elias, 513 F.

Supp. 430, 431-32 (E.D.N.Y.1980). We adhere to this view; plaintiff is not

constitutionally entitled to the most appropriate education that might have

assisted him in respect to his severe handicap.

Sound policy reasons support the proposition that the Constitution

does not guarantee the most appropriate education.

The system of public education that has evolved in this

Nation relies necessarily upon the discretion and judgment of

school administrators and school board members, and § 1983

was not intended to be a vehicle for federal-court corrections

of errors in the exercise of that discretion which do not rise to

the level of violations of specific constitutional guarantees.

Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214

(1975). See also Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266,

270, 21 L.Ed.2d 228 (1968) (“Courts do not and cannot intervene in the

resolution of conflicts which arise in the daily operation of school systems

and which do not directly and sharply implicate basic constitutional

values.”).

(Emphasis added). As succinctly discussed by the Gallagher Court, courts, in various

jurisdictions, have specifically limited claims of deprivation and exclusion of a student’s

right to public education to those cases where the student is suspended or expelled from

school, i.e., literally excluded from the classroom. In fact, the Sixth Circuit has held that

in-school suspension does not implicate a property interest in a public education because

the student is not, in fact, excluded from school. See Laney v. Farley, 501 F.3d 577, 581-

83 (6th Cir. 2007). As set out in her complaint, Ms. Jones has not averred that she was

excluded from the classroom or school; rather, the crux of her argument is that the

computer-based classroom was not the most appropriate learning mechanism for her.

The Gallagher Court specifically rejected this argument. The substantive right to a

public education does not include the right to a particular course placement or a particular

type of teaching mode. See, e.g., Goss v. Lopez, 419 U.S. 565, 579 (1975) (“The

student’s interest is to avoid unfair or mistaken exclusion from the educational process,

with all of its unfortunate consequences.”); Johnpoll v. Elias, 513 F. Supp. 430, 432

(E.D.N.Y. 1980) (“With all due respect to the plaintiff’s parental concern, this court

cannot be used as a vehicle to review fundamental administrative decisions such as

student placement.”). From her complaint, Ms. Jones was not deprived or excluded from

a public education; rather, by administrative decision, she was excluded from a particular

course. Exclusion from the “type” of education that the student thinks is best is not the

purview of the due process clause of the Fourteenth Amendment. There is no property

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right in a particular class or teaching mode. Accordingly, the trial court properly

dismissed Ms. Jones’ complaint for failure to state a claim.

V. Conclusion

For the foregoing reasons, we affirm the trial court’s order. The case is remanded

for such further proceedings as may be necessary and are consistent with this opinion.

Costs of the appeal are assessed against the Appellant, Toni Jones and her surety, for all

of which execution may issue if necessary.

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KENNY ARMSTRONG, JUDGE

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