Opposition Brief — Morgan v. Chris L. ex rel. Mike L.

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No. 96-1681

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In The

Supreme Court of the United States

October Term, 1996

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ALLEN MORGAN, SUPERINTENDENT,

KNOX COUNTY SCHOOLS,

Petitioner,

CHRIS L., A MINOR BY NEXT FRIEND, MIKE L.,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

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RESPONDENT'S BRIEF IN OPPOSITION

¢

BRENDA McGee

6608 Crystal Lake Drive

Knoxville, Tennessee 37919

(423) 588-0021

DEAN Hoewt RIVKIN

Counsel of Record

1534 Cumberland Avenue

Knoxville, Tennessee 37996-4070

(423) 974-1481

Counsel for Respondent

May 6, 1997

COCKLE LAW BRIEF PRINTING CO, (800) 225-69¢ 4

OR CALL COLLECT (402) 342-2831

eine

ee ANNE ‘ =

QUESTION PRESENTED

Whether courts possess the remedial authority under the

Individuals with Disabilities Education Act, 20 U.S.C.

§ 1415, and Tennessee law to grant appropriate relief

directing a school system to seek dismissal of a Juvenile

Court petition it unilaterally filed against a student with

a behavioral disability for conduct that the school deter-

mined was a manifestation of his disability without first

complying with the procedural safeguards in Tennessee

and federal special education laws.

il

TABLE OF CONTENTS

Page

Fo a Bg ss Nr ree rey er i

STATUTORY PROVISIONS INVOLVED............. 1

Re me be errs nee 2

REASONS FOR DENYING THE WRIT............. 4

L, Fea CASE SS IIe Bee asi kecckewescsis +

II. BECAUSE THE DECISIONS BELOW ARE

GROUNDED IN TENNESSEE LAW, THE

CONSTITUTIONAL ARGUMENTS OF THE

PETITIONER ARE MISPLACED............. 7

lil. THE DECISIONS BELOW, STRESSING AS

THEY DO THE IMPORTANCE OF THE PRO-

CEDURAL PROTECTIONS OF THE IDEA,

ARE CONSISTENT WITH DECISIONS OF

See SEE bk ano 5 bb Ad cag eek aceneekeesiads 9

IV. THE DECISIONS BELOW REST ON THREE

INDEPENDENT IDEA GROUNDS........... 11

V. THIS CASE IS FACT-DRIVEN............... 13

CRA PRIOS 56.545 iusteerdscaenssseueeVeepee teen 14

APPENDICES

Appendix A: March 25, 1997, Letter from Knox

County Deputy Law Director to Counsel for

PUG, 6 3 sein tees 5ks Chadd en hees Res. App. la

Appendix B: March 12, 1997, Memorandum from

Knox County Juvenile Court to Knox County

a Pree eee rete eer Res. App. 3a

Appendix C: Affidavit of Chris L. ........ Res. App. 4a

Appendix D: May 21, 1993, Policy Letter Concern-

ing Juvenile Court Filings by School Systems,

Tennessee Department of Education..... Res. App. 6a

ili

TABLE OF AUTHORITIES

Page

Cases CITED

Board of Education of Community High School Dis-

trict No. 218 v. Illinois State Board of Education,

Bk” Bo ge, Be a errr. rer rer 11

Burlington School Committee v. Massachusetts

Department of Education, 471 U.S. 359 (1985)....... 12

Hayes v. Unified School District No. 377, 877 F.2d

ee Be Perr ry erro Te pre ae 12

Hendrick Hudson District School Board of Education

v. Rowley, 458 U.S. 176 (1982).............5.00.- 2. 33

Honig v. Doe, 484 U.S. 305 (1988)........ 6, 9, 16, 11, 33

In re Tony McCann, C.A. No. 158, Roane Law, 1990

WL 16883, 17 Education for Handicapped Law

Rptr. 551 (Tenn. Ct. App. 1990), app. denied, July

IS ee ce yd eC a WES oon a khbs Ge wk «sae 4 7, 8

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ...5, 6

Preiser v. Newkirk, 422 U.S. 395 (1975) ................ 6

Virginia Department of Education v. Riley, 106 F.3d

gg fo Ub oy Ire reese re eee rrr Tree re 7%

Statutes CITED E

3 Tae Gee eee Sere yer rre are rer re 9

Ot Ie DRE i oer ee nck cv cin sa sebed nes yernaneaes 3

20 U.S.C. § 14156 INC) & (EB)... 2... cece eee ec ens 1

Be UE. © PR & 5 wo na shee esas ve teteess 1, 1,42

20 USE] UAT GID) 3 osc i ec crave ences w ces 11

DRT oe Bo 6 i eer ere ree 12

iv

TABLE OF AUTHORITIES - Continued

Page

Tenn. Code Ann. § 37-1-128(c)(1) & (2)............. 1, 8

wenn. CoGe Ant. & S7-i-TUZIGA) wc on ccccesvecscees 4

Tenn. Code Ann. § 49-6-4301(a) ......... ccc ec cceees 10

MISCELLANEOUS

S. Conf. Rep. No. 455, 94th Cong., Ist Sess., 28 &

29, reprinted in 1975 U.S. Code Cong. & Ad.

oo ee omy ere pene poe rey aay pene 11

STATUTORY PROVISIONS INVOLVED

Section 615(b)(1)(C) & (E) of the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C.

§ 1415(b)(1)(C) & (E), provides in pertinent part:

(1) The procedures required by this section

shall include, but shall not be limited to

(C) Written prior notice to the parents or

guardian of the child whenever such agency

or unit

(i) proposes to initiate or change

. the identification, evaluation, or

educational placement of the child or

the provision of a free and appropriate

public education to the child;

(E) an opportunity to present complaints

with respect to any matter relating to the

identification, evaluation, or educational

placement of the child, or the provision of a

free appropriate education to such child.

Section 615(e)(2) of the Individuals with Disabilities

Education Act, 20 U.S.C. § 1415(e)(2) provides in perti-

nent part:

In any action brought under this paragraph the

court . . . shall grant such relief as the court

determines is appropriate.

Tennessee Code Annotated § 37-1-128(c)(2) [Juvenile

Courts and Proceedings] provides in pertinent part:

If a child is suspected of being in need of or is

eligible for special education services, then state

and federal laws governing evaluation and

placement must be followed.

*

STATEMENT OF THE CASE

This IDEA case arose when the Knox County, Tennes-

see, school system unilaterally filed a petition in Juvenile

Court seeking to prosecute a 14-year-old student with a

behavioral disability for allegedly kicking a pipe in a

school bathroom and causing water damage. The Juvenile

Court petition was the culmination of years of neglect by

the school system in providing proper special education

and related services to Chris L. To redress the school

system’s violations of both the IDEA and state law, a state

Administrative Law Judge (“ALJ”) ruled “that the school

system take all actions necessary to seek dismissal of the

juvenile court petition filed against this student.” Peti-

tioner’s Appendix (“Pet. App.”) 43a. The decision of the

ALJ was affirmed on appeal by both the United States

District Court for the Eastern District of Tennessee and

the United States Court of Appeals for the Sixth Circuit.

The decisions of the Courts below adequately expli-

-cate the factual background of this case. Because the

Petitioner’s recitation of the facts and the legal issues

conflicts with the actual findings of fact in this case,

several aspects must be highlighted:

1. Relying on the testimony of witnesses at the state

administrative due process hearing and the overall record

presented by the parties, the three Courts below found

that the Knox County school system violated the require-

ments of the IDEA by failing timely to identify and serve

Chris L. as a student eligible for special education and

related services. Pet. App. 12a, 14a-15a, 38a-40a, 41a.

Having neglected Chris’s evident educational and behav-

ioral needs, the efforts of his parents to secure assistance,

and its statutory obligation to provide special education

and related services, the school system was properly held

accountable by the Order of the ALJ. This Order in no

way intrudes upon the jurisdiction of the Juvenile Court.

Pet. App. 37a.

2. By unilaterally filing a Juvenile Court petition,

the school system circumvented the important procedural

protections embodied in the IDEA, 20 U.S.C. § 1415(b).

These protections were designed to ensure that, with the

full participation of a student’s parents and knowledg-

able experts, a school system will consider all relevant

information about an educationally disabled student

before taking action that could fundamentally affect the

student’s educational placement and program. As found

by the ALJ, the filing of the Juvenile Court petition was

“the initiation of a change in placement and/or a disci-

plinary action.” Pet. App. 42a. This finding of fact was

adopted by both the District Court and the Court of

Appeals.

3. Following discussion with Chris’s father in the

days immediately following the alleged incident, the

principal of Chris’s school requested from higher school

authorities that the Juvenile Court petition filed by the

school system be withdrawn. He was told that he had no

control over the petition. Pet. App. 42a.

4. Chris’s alleged behavior, kicking a pipe in the

school bathroom, was found to be a manifestation of his

behavioral disability both by school officials and by

Chris’s treating psychologist. Pet. App. 33a, 41a.

5. Once school officials certified Chris as eligible for

special education and related services under the IDEA, an

educational and behavioral program was designed to

accommodate Chris’s disability. Pet. App. 41a .

S

REASONS FOR DENYING THE WRIT

I. THIS CASE IS NOW MOOT.

Following the decision of the Court of Appeals on

January 21, 1997, the Petitioner filed an untimely Petition

for Rehearing and Rehearing En Banc, which the Court

directed not be filed. On February 24, 1997, the mandate

from the Sixth Circuit issued. The school system made no

attempt to stay the mandate.

Following the issuance of the mandate, counsel for

the Respondent wrote to Atlanta counsel for the Peti-

tioner requesting that the school system comply with the

Order of the Court. By letter of March 25, 1997, a Knox

County Deputy Law Director stated that the Juvenile

Court petition had been dismissed and Chris’s Juvenile

Court record destroyed. Respondent’s Appendix (“Res.

App.”) A. The letter also included a memorandum from

the Chief Probation Officer of the Knox County Juvenile

Court confirming the dismissal. Res. App. B.

The school system filed its petition against Chris

when he was a 14-year-old eighth grade middle school

student. Chris is now 18 years old. Under Tennessee law,

he is no longer a child subject to the jurisdiction of the

Juvenile Court. Tenn. Code Ann. § 37-1-102(4)(A). The

immutable fact is that the school system can no longer file

a Juvenile Court petition against Chris.

As stated in his Affidavit, Res. App. C, Chris with-

drew from the Knox County school system following the

first semester of his senior year in high school. He is now

employed, and he does not plan to return to school. He

hopes to receive his GED in the near future.

In Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78

(1990), this Court ruled that for a case to be justiciable the

dispute must remain alive throughout all stages of the

litigation:

Article II] denies federal courts the power “to

decide questions that cannot affect the rights of

litigants in the case before them,” North Caro-

lina v. Rice, 404 U.S. 244, 246 (1971), and con-

fines them to resolving “ ‘real and substantial

controvers[ies] admitting of specific relief

through a decree of a conclusive character, as

distinguished from an opinion advising what

the law would be upon a hypothetical state of

facts.’ ” Ibid. (quoting Aetna Life Insurance Co.

v. Haworth, 300 U.S. 227, 241 (1937)). This case-

or-controversy requirement subsists through all

stages of federal judicia! proceedings, trial and

appellate. To sustain our jurisdiction in the pres-

ent case, it is not enough that a dispute was very

much alive when suit was filed, or when review

was obtained in the Court of Appeals. Deakins,

supra, 484 U.S. at 199; Steffel v. Thompson, 415

U.S. 452, 459 n.10 (1974). The parties must con-

tinue to have a “ ‘personal stake in the outcome’ ”

of the lawsuit, Los Angeles v. Lyons, 461 U.S. 95,

1091 (1983) (quoting Baker v. Carr, 369 U.S. 186,

204 (1962)).

The Respondent no longer has this personal stake.

His request for an IDEA due process hearing neither

sought damages nor class action certification, factors that

this Court has identified as keeping a case alive. Preiser v.

Newkirk, 422 U.S. 395, 402 (1975). In the present case, even

if this Court were to grant certiorari and reverse the

decision of the Court below, its judgment would have no

operative effect on an ongoing controversy.! Chris has

now received all the relief that he sought, and his Juve-

nile Court record has been destroyed. The school system

can no longer pursue its petition. Essentially, the Peti-

tioner is now seeking an advisory opinion from this

Court.

This case also does not fit into the “capable of repeti-

tion, yet evading review” exception to the mootness doc-

trine. First, this case has not evaded review. The school

system has received three plenary decisions analyzing the

issues of this case. Had the Petitioner wanted to preserve

review in this Court, he should have requested a stay of

the mandate from the Sixth Circuit or here. He did nei-

ther, and the ordered relief has been executed.

Second, there is no “reasonable expectation” or “suffi-

cient likelihood” that Chris will again be subject to the

filing of a Juvenile Court petition by the Knox County

Schools. See Honig v. Doe, 484 U.S. 305, 317-23 (1988).

Chris is now beyond the jurisdiction of the Juvenile Court

and no longer enrolled in school. For Chris, this case is

irrevocably over.

1 The pendency of Respondent’s petition for statutory

attorney’s fees and costs does not “create an Article III case or

controversy where none exists on the merits of the underlying

claim.” Lewis v. Continental Bank Corp., 494 U.S. at 480 (1990).

II. BECAUSE THE DECISIONS BELOW A4k*®

GROUNDED IN TENNESSEE LAW, THE CONSTI-

TUTIONAL ARGUMENTS OF THE PETITIONER

ARE MISPLACED.

The Petitioner chides the Sixth Circuit for its “failure

even to notice the affront to federalism,” Cert. Pet. 11,

caused by its decision and argues that the “logic of the

Sixth Circuit is fundamentally at odds with the approach

recently followed by the Fourth Circuit in Virginia

Department of Education v. Riley, 106 F.3d 559 (4th Cir.

1997)....” Cert. Pet. 9-10. Aside from dispositive factual

differences between the two cases (in Riley, for example,

Virginia sought cessation of IDEA services for students

whose behaviors were not manifestations of their disabil-

ities), the Sixth Circuit rejected the school system’s consti-

tutional arguments, raised for the first time in that Court,

for a very compelling reason: the result in this case is

grounded in Tennessee law and policy, not exclusively in

the federal IDEA.

All three decisions below rely on In re Tony McCann,

C.A. No. 158, Roane Law, 1990 WL 16883, 17 Education

for Handicapped Law Rptr. 551 (Tenn. Ct. App. 1990),

app. denied, July 30, 1990 (the Tennessee Court of Appeals

decision was authored by Riley Anderson, now Chief

Justice of the Tennessee Supreme Court). In McCann, the

Roane County, Tennessee, school system filed a Juvenile

Court petition against Tony McCann, a mentally and

emotionally disabled student, without first complying

with the procedural requirements of the IDEA. The Juve-

nile Court petition alleged that Tony was physically abu-

sive, threatened teachers, and was involved in fighting

and other disruptive behavior. Finding that the pro-

cedures required by special education law had not been

followed, the Court ruled:

All of the foregoing clearly demonstrates the

Roane County School System violated both the

[IDEA] and Tennessee regulations in their

response to Tony McCann’s disciplinary prob-

lems. The school system must follow mandated

administrative procedures before turning the

handicapped student over to the Juvenile Court

system.

1990 WL 16883, p. 4. McCann is a state case interpreting

state statutes, in particular Tenn. Code Ann.

§ 37-1-128(c)(1) & (2). By relying on this decision, all three

Courts below honored, not “arrogated,” state power.

In addition, unlike the decision in the Virginia Depart-

ment of Education v. Riley, supra, which was a state chal-

lenge to a funding cut-off by the U.S. Department of

Education, this case was initially heard by a Tennessee

ALJ, whose expertise in special education and juvenile

law and policy should be given great weight. If the con-

stitutional arguments of the Petitioner are accepted, they

would also nullify the policy of the Tennessee Depart-

ment of Education, which has determined that school

systems must promulgate procedures to ensure that all

special education administrative procedures are

exhausted before a school system can file a Juvenile

Court petition against a student with disabilities for con-

duct that is a manifestation of the student’s disability.

Res. App. D.

Ill. THE DECISIONS BELOW, STRESSING AS THEY

DO THE IMPORTANCE OF THE PROCEDURAL

PROTECTIONS OF THE IDEA, ARE CONSIS-

TENT WITH DECISIONS OF THIS COURT.

Throughout this litigation, the Petitioner has cited no

case even closely analogous to support his position. The

argument that the school system can circumvent the pro-

cedural safeguards of the IDEA and unilaterally pros-

ecute a student with disabilities for conduct related to his

disability is at odds with the decisions of this Court in

Hendrick Hudson District School Board of Education v. Row-

ley, 458 U.S. 176 (1982) and Honig v. Doe, 484 U.S. 305

(1988). In Rowley, this Court stressed the importance of

ensuring that school systems strictly comply with the

procedural safeguards of the IDEA:

When the elaborate and highly specific pro-

cedural safeguards embodied in § 1415 are con-

trasted with the general and somewhat

imprecise substantive admonitions contained in

the Act, we think that the importance Congress

attached to these procedural safeguards cannot

be gainsaid. It seems to us no exaggeration to

say that Congress placed every bit as much

emphasis upon compliance with procedures giv-

ing parents and guardians a large measure of

participation in every stage of the administra-

tive process .. . as it did upon the measurement

of the resulting IEP against a substantive stan-

dard.

Id. at 206. In Honig v. Doe, a public school system argued

that the IDEA included an exception to its procedural

safeguards for educationally disabled students deemed

10

dangerous or disruptive. This Court rejected that argu-

ment, stating:

We think it clear, however, that Congress very

much meant to strip schools of the unilateral

authority they had traditionally employed to

exclude disabled students, particularly emo-

tionally disturbed students, from school. In

doing so, Congress did not leave school admin-

istrators powerless to deal with dangerous stu-

dents; it did, however, deny school officials their

former right to “self-help,” and directed that in

the future the removal of disabled students

could be accomplished only with the permission

of the parents or, as a last resort, [a court of

competent jurisdiction].?

Id. at 323-24 (emphasis in original).

The Petitioner’s claim that the decision below con-

flicts with Honig is specious. The Order of the ALJ is

directed only to the school system, not the Juvenile

Court. Pet. App. 19a-20a, 37a-38a. Also, Tenn. Code Ann.

§ 49-6-4301(a), the provision relied on by the Petitioner to

support its argument that the principal had a mandatory

obligation to “report” Chris’s conduct, is not applicable

to this case. Chris’s alleged conduct, kicking and break-

ing a bathroom pipe, did not constitute “vandalism

endangering life, health, and safety.” Pet. App. 21. Under

the statute, if the principal believes that its terms are met,

he is to report to the municipal or metropolitan police

2 In Tennessee, a Juvenile Court is not a state court of

competent jurisdiction as contemplated by 20 U.S.C.

§ 1415(e)(2).

11

department or sheriff’s department. In this case, the prin-

cipal sought to drop the charges. Pet. App. 33a. The

section does not mandate that the school system file a

Juvenile Court petition. There is, therefore, no conflict

with Honig.

IV. THE DECISIONS BELOW REST ON THREE

INDEPENDENT IDEA GROUNDS.

The IDEA is not simply a funding statute premised

on the Spending Clause. It rests on Congress’ power to

enforce section 5 of the Fourteenth Amendment. S. Conf.

Rep. No. 455, 94th Cong., lst Sess., 28 & 29, reprinted in

1975 U.S. Code Cong. & Ad. News 1480, 1482 (“The Senate

bill . . . states that it is the national interest that the

federal government assist state and local efforts in order to

assure equal protection of the law.” (emphasis in original));

see Rowley, 458 U.S. at 200 (Act “provide[s] a ‘basic floor

or opportunity’ consistent with equal protection”).

There are three independent grounds rooted in the

language and remedial purposes of the IDEA that sup-

port the decisions below. First, the ALJ made a finding of

fact that the unilateral filing of a Juvenile Court petition

by the school system was a proposal to initiate or change

the educational placement of Chris under 20 U.S.C.

§ 1415(b)(C)(i). This determination comports with the

weight of lower court decisions interpreting this fact-

driven language. See, e.g., Board of Education of Community

High School District No. 218 v. Illinois State Board of Educa-

tion, 103 F.3d 545, 548-49 (7th Cir. 1996) (summary of

cases on change of placement). It is cynical for the Peti-

tioner to suggest that the potential for incarceration that

12

existed in this case is mitigated because there may only

be a “change in the location of the site in which the

appropriate individualized education program (“IEP”)

under the IDEA will be implemented.” Cert. Pet. 4. The

plain meaning of “change of placement” must certainly

encompass a student who may be removed from his

home school and placed in jail. See Pet. App. 20a.

Second, the Courts below found that the school sys-

tem’s filing of juvenile charges against Chris constituted

disciplinary action that falls within the ambit of 20 U.S.C.

§ 1415(b)(1)(E). As is undisputed in the record, the filing

of the Juvenile Court charges was the culmination of a

lengthy series of suspensions levied against Chris

because of his behavior. Against this background, the

filing of a Juvenile Court petition was a form of disciplin-

ary exclusion that triggered the procedural protections of

20 U.S.C. § 1415(b). See Hayes v. Unified School District No.

377, 877 F.2d 809 (10th Cir. 1989).

Finally, the Courts below determined that the school

system had violated the IDEA by failing to identify and

provide special education services to Chris either before

or during his academic and behavioral decline during the

1992-93 school year. Pet. App. 12a. These violations justi-

fied the relief awarded by the Courts below under the

broad discretion conferred on courts to fashion “appro-

priate” relief. 20 U.S.C. § 1415(e)(2). In Burlington School

Committee v. Massachusetts Department of Education, 471

U.S. 359, 369 (1985), this Court underscored the latitude

of the remedial authority accorded to courts in IDEA

litigation:

13

The statute directs the court to “grant such relief

as [it] determines is appropriate.” The ordinary

meaning of these words confers broad discretion

on the court. The type of relief is not further

specified, except that it must be “appropriate.”

Absent other reference, the only possible inter-

pretation is that the relief is to be “appropriate”

in light of the purpose of the Act.

The purpose of IDEA is to assure that children with

disabilities are not deprived of a free and appropriate

public education because of behavioral problems associ-

ated with their disabilities. In this case, the AL]’s reme-

dial order is carefully tailored to further this purpose.

V. THIS CASE IS FACT-DRIVEN.

As found by all three Courts, the exaggerated claims

of the Petitioner find no support in the record of this case.

First, Chris’s alleged conduct, which stemmed from his

behavioral disability, does not make him a delinquent

perpetrator of violence, as the Petitioner seeks to portray.

Indeed, the Juvenile Court petition filed against him was

characterized by the District Court as an “unruly,” not a

“delinquent” petition, Pet. App. 19a, denoting less

serious behavior.

Second, even if Chris’s conduct did rise to the level of

immediately endangering himself or others, the school

system has remedies under the IDEA and state law avail-

able to exclude disabled students who engage in such

conduct. See Honig v. Doe, 484 U.S. at 325-26 (school

systems can seek an injunction excluding a student from

school following a 10-day suspension). The decisions

below also do not prohibit school systems from calling

14

the police or mental health crisis teams when emergency

circumstances justify such action. The Petitioner’s version

of this case was properly portrayed by the District Court

as “a parade of horrors.” Pet. App. 21a.

Finally, the decisions below do not “divest” a Juve-

nile Court of jurisdiction. They do compel a school sys-

tem to comply with the procedural safeguards of the

IDEA and state law before filing a Juvenile Court petition

against a disabled student. This “exhaustion” concept,

which underpins the decisions below, is consistent with

the expansive remedial purposes that animate the IDEA.

¢

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

BRENDA McGEE

6608 Crystal Lake Drive

Knoxville, Tennessee 37919

(423) 588-0021

DEAN Hitt RIvKIN

Counsel of Record

1534 Cumberland Avenue

Knoxville, Tennessee 37996-4070

(423) 974-1481

Counsel for Respondent

APPENDIX

Res. App. la

APPENDIX A

[SEAL] KNOX COUNTY LAW DIRECTOR

RICHARD T. BEELER

John E. Owings

Chief Deputy Law Director

Michael W. Moyers

Senior Deputy Law Director

Catherine F. Quist

Mary Ann Stackhouse

Wendell K. Hall

Susan E. Shanks

Deputy Law Directors

March 25, 1997

Dean Rivkin

Brenda McGee

1534 Cumberland Avenue

Knoxville, TN 37996-4070

RE: Allen Morgan, Superintendent, Knox County Schools v.

Chris L., a minor, b/n/f Mike L.,

U.S.D.C. Docket No. 3:93-cv-0524

Dear Dean and Brenda:

Enclosed you will find a copy of a Memorandum

from Larry Gibney, Chief Probation Officer, to Steve

Griffin, Chief of Security, as further evidence of dismissal

of the Petition against Chris L. and destruction of court

records.

If you have any questions, please contact me at your

earliest convenience.

Res. App. 2a

With best regards,

/s/ Catherine F. Quist/KFC

CATHERINE F. QUIST

Deputy Law Director

CFQ:kfc

Res. App. 3a

APPENDIX B

KNOX COUNTY JUVENILE COURT

MEMORANDUM

March 12, 1997

To: Steve Griffin

Chief of Security

Knox County Schools

From: Larry Gibney

Chief Probation Officer

Re: Chris [L.]

I have at hand your memorandum of March 11

requesting withdrawal of the vandalism petition, filed by

your department, on the above named youth. That action

has, in effect, already been done.

The petition in question was filed May 12, 1993 and

was set for hearing on July 8, 1993. On that date the

matter was passed to be reset because other litigation was

pending on this matter in other courts. As that other

litigation remained active elsewhere the petition was

never reset in this court. When the youth turned 18 on

January 3, 1997 our case was closed. At that time, in

keeping with our policy, since no formal disposition had

ever been entered regarding this youth, the record was

destroyed and his name has been removed from the

records of this court.

Res. App. 4a

APPENDIX C

IN THE

SUPREME COURT OF THE UNITED STATES

OctTosBeR TERM, 1996

No. 96-1681

ALLEN MORGAN,

SUPERINTENDENT, KNox COUNTY SCHOOLS,

Petitioner,

V.

Curis L., A Minor sy Next FRIEND, Mike L.,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

AFFIDAVIT

I, Chris L., having been duly sworn, state as follows:

1. I am the Respondent in this case.

2. I turned 18 years old on January 3, 1997.

3. I withdrew from the Knox County Schools in

January, 1997, after the first semester of my senior year in

high school.

4. I am now employed.

5. In the future, I plan to obtain a GED. I have no

intention of returning to the Knox County Schools.

6. Further affiant sayeth not.

Res. App. 5a

This the 1st day of May, 1997.

/s/ Chris L.

Chris L.

Sworn to and subscribed before me this the 1st day of

May, 1997.

/s/ Doris J. Gentry

Notary Public

My Commission expires 9-29-99.

Res. App. 6a

APPENDIX D

[SEAL]

TENNESSEE

STATE DEPARTMENT OF EDUCATION

OFFICE OF COMMISSIONER

NASHVILLE, TENNESSEE 37843-3275

May 21, 1993

Amon Lay, Superintendent

Scott County School System

P.O. Box 37, 208 Court St.

Huntsville, TN 37756

Dear Superintendent Lay:

This office has received notification from Lenny Croce

that the complaint filed on behalf of [name omitted] is not

resolved. The action needed to bring closure to this com-

plaint is to provide notification of your specific procedure

to exhaust all administrative remedies before filing peti-

tions in Juvenile Court on children with disabilities. See

In re: McCann, C.A. No. 58, slip pp. 5-9 (Tenn. Ct. App.,

Feb. 27, 1990).

Your specific procedure may include maintaining a list of

special education students for each school level staff and

central office staff who may refer a student of Juvenile

Court. These staff members could then refer the student

back to the M-Team to recommend alternative discipline

or behavior management strategies to insure administra-

tive remedies are tried to offset the necessity to refer the

student to Juvenile Court.

Please submit your plan for insuring students’ procedural

safeguards with regard to discipline no later than June 14,

1993.

Res. App. 7a

We appreciate your recommendation for an inservice pro-

gram for principals and administrators to be conducted

in the Fall of 1993 to address discipline of disabled stu-

dents. If we can be of assistance, please feel free to

contact us.

Sincerely,

/s/ Joseph Fisher

Joseph E. Fisher

Assistant Commissioner

JEF:RS:ct

cc: Regan Stein

Mike Burchfield

Lenny Croce