UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

L.H., a Minor Student, et al., )

)
Plaintiffs, ) Case No. 1:14-cv-126
)
v. ) Judge Curtis L. Collier
)
HAMILTON COUNTY DEPARTMENT ) Magistrate Judge Susan K. Lee
OF EDUCATION, et al., )
)
Defendants. )

MEMORANDUM & ORDER

Before the Court are Plaintiffs second motion for summary judgment (Doc. 185) and

Defendants motion for summary judgment (Doc. 186). For the reasons explained below, the

Court GRANTS Plaintiffs second motion for summary judgment (Doc. 185) and DENIES

Defendants motion for summary judgment (Doc. 186).

I. BACKGROUND

The Court laid out the facts of this case in great detail in its November 4, 2016

memorandum resolving Plaintiffs Individuals with Disabilities Education Act (IDEA) claims.1

(Doc. 172.) The Court will thus forego a recitation of the underlying facts, and focus instead on

the procedural background of this case since November 4, 2016.

In response to the Courts IDEA decision, Defendants filed a motion for reconsideration

(Doc. 176), which the Court denied (Doc. 201), and Plaintiffs filed a motion for an equitable

remedy (Doc. 183), which the Court also denied (Doc. 202). Plaintiffs then filed an unopposed

1
The Court issued its IDEA findings after bifurcating Plaintiffs IDEA claims from
Plaintiffs other claims and conducting a bench trial on Plaintiffs IDEA claims.

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 motion for partial dismissal (Doc. 184), in which they sought dismissal of their retaliation claims

under Title II of the Americans with Disabilities Act (Title II), Section 504 of the Rehabilitation

Act (Section 504), the First Amendment, and 42 U.S.C. 1983, as well as their legal damages

claims under Title II and Section 504. The Court granted Plaintiffs motion for partial dismissal.

(Doc. 203.) Plaintiffs then filed an unopposed motion to strike their jury demand (Doc. 204),

which the Court granted (Doc. 205).

Plaintiffs maintain claims of unnecessarily restrictive placement under Title II and Section

504 and seek only equitable, injunctive, and declaratory relief, as well as fees and costs. Both

Plaintiffs and Defendants moved for summary judgment on these remaining claims (Docs. 185 &

186), to which the opposing party responded (Docs. 192 & 191), and the moving party replied

(Docs. 193 & 194).

While the summary judgment motions were pending, the Supreme Court issued its decision

in Endrew F. v. Douglas County School District. The Court invited the parties to provide

supplemental briefing addressing the impact of this decision on any motions pending before the

Court (Docs. 197 & 198), and both Plaintiffs (Doc. 199) and Defendants (Doc. 200) filed

supplemental briefs. Additionally, the District Court for the Eastern District of Tennessee recently

issued an opinion in I.L. v. Knox County Board of Education, a case which addresses the issue of

discriminatory intent under Title II and Section 504. Both Plaintiffs (Doc. 206) and Defendants

(Doc. 207) filed notices of supplemental authority addressing the impact of I.L. on the pending

summary judgment motions.

II. STANDARD OF REVIEW

Summary judgment is proper when the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.

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 56(a). The moving party bears the burden of demonstrating no genuine issue of material fact

exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897

(6th Cir. 2003). The Court should view the evidence, including all reasonable inferences, in the

light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Natl Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th

Cir. 2001).

III. ANALYSIS

Both Plaintiffs and Defendants have moved for summary judgment on Plaintiffs claims

under Title II and Section 504. The Court will address each motion in turn.

A. Plaintiffs Motion for Summary Judgment

Plaintiffs argue the Courts least-restrictive-environment finding under the IDEA is

sufficient for the Court to find Defendants violated analogous least-restrictive-environment

provisions in Title II and Section 504. With regard to the IDEA issue, the Court concluded:

L.H. does not fall within any of the categories of students who cannot be
successfully mainstreamed. He is not a student who could not benefit from being
in the regular-education setting; the non-portable benefits of a non-mainstream
setting do not far outweigh the benefits of the regular-education setting; and he is
undisputedly not too disruptive for the regular-education setting. Therefore, under
the standard set forth by the Sixth Circuit Court of Appeals in Roncker,
[Defendants] proposal to remove L.H. from a fully mainstreamed setting and
provide him with academic instruction in a separate CDC classroom was
inappropriate.

(Doc. 172 (citing Roncker ex rel. Roncker v. Walter, 700 F.2d 1058, 1062 (6th Cir. 1983)).

Plaintiffs argue (1) the Courts factual findings used to support its least-restrictive-environment

decision under the IDEA may be used to rule on the summary judgment motions before the court,

and (2) the factual findings used to support the least-restrictive-environment findings under the

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 IDEA also support a finding that Defendants violated analogous provisions of Title II and Section

504.

Normally, a Courts factual findings derived from a bench trial are not binding on a jury at

a subsequent stage of the case, see Lytle v. Household Manufacturing., Inc., 494 US 545, 5253

(1990), and thus could not be used to rule on a summary judgment motion. Here, however,

Plaintiffs have dismissed all jury claims (Doc. 203). Because Plaintiffs Title II and Section 504

claims arise from the same underlying facts as their IDEA claim, and the Court previously made

detailed factual findings regarding Plaintiffs IDEA claim and determined Defendants violated the

IDEAs least-restrictive-environment provision, it is consistent with the theories of issue

preclusion and law of the case to apply these factual findings when ruling on the pending motions

for summary judgment. See United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990) (Under the

doctrine of the law of the case, a decision on an issue made by a court at one stage of a case should

be given effect in successive stages of the same litigation.).

Defendants argue issue preclusion and law of the case should not apply to the facts in

question because they are part of an interlocutory order, not a final judgment on the merits. Even

assuming Defendants are correct that a final judgment would be necessary to apply issue

preclusion or law of the case in this context, the Courts November 4, 2016 memorandum and

order (Docs. 172 & 173) constitute a final judgment on the merits, as they include detailed findings

of fact and conclusions of law sufficiently firm to be accorded conclusive effect. See Birgel v. Bd.

of Commrs, 125 F.3d 948, 952 (6th Cir. 1997). Additionally, if any doubt remained as to the

conclusive effect of the Courts IDEA findings, the Court recently denied a motion for

reconsideration regarding the memorandum and order in question. (Doc. 201.)

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 The Court will thus apply its factual findings from the IDEA stage of this case when ruling

on both Plaintiffs and Defendants motions for summary judgment. Having determined the facts,

the Court need only resolve the outstanding legal questions raised by the parties.

With regard to Plaintiffs claims under Title II and Section 504, Defendants concede L.H.

qualifies for protection under these laws and these laws contain least-restrictive-environment

provisions. Defendants argue, however, that the Courts IDEA least-restrictive-environment

decision was not sound and thus should not be applied to Plaintiffs remaining claims.

Furthermore, Defendants argue discriminatory intent is required to find a violation of Title II and

Section 504an element not required under IDEA least-restrictive-environment analysis and an

element the Court specifically found to be absent during its IDEA analysis.

With regard to Defendants first line of argument, the Court addressed its confidence in its

reasoning and conclusion under the IDEA when it denied Defendants motion to reconsider. (Doc.

201.) Defendants second line of argument, focused on the issue of discriminatory intent, requires

further analysis here.

As Defendants have conceded, the regulations implementing Title II contain a least-

restrictive-environment provision, 28 C.F.R. 35.130(d),2 as do the regulations implementing

Section 504, 34 C.F.R. 104.34(a).3 See also Olmstead v. L.C., 527 U.S. 581, 600 (1999)

2
Requiring public entities to administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified individuals with disabilities and defining
the most integrated setting as a setting that enables the individuals with disabilities to interact
with nondisabled persons to the fullest extent possible. 28 C.F.R. 35.130(d).
3
A recipient to which this subpart applies shall educate, or shall provide for the education
of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to
the maximum extent appropriate to meet the needs of the handicapped person. A recipient shall
place a handicapped person in the regular educational environment operated by the recipient unless
it is demonstrated by the recipient that the education of the person in the regular environment with

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 (describing unjustified segregation of persons with disabilities as a form of discrimination under

the ADA). As a result, it is often the case that an IDEA violation at the very least supports, and

often dictates, a finding of a violation under Title II and Section 504. See Andrew M. v. Del. Cty.

Office of Mental Health & Mental Retardation, 490 F.3d 337, 350 (3d Cir. 2007) (reasoning that

violations of Part B of the IDEA will almost always constitute violations of the Rehabilitation

Act). This case is no exception. Defendants proposed placement of L.H. constitutes a violation

of the least-restrictive-environment requirement of both Title II and Section 504 for the same

reasons it constituted a violation of the IDEA, as quoted from the Courts IDEA opinion above.

(See Doc. 172.)

The remaining question, however, is whether there is an additional requirement of intent

to discriminate under Title II or Section 504. Application of the Courts IDEA findings to these

motions for summary judgment cuts both ways, as the Court found Defendants violated the least-

restrictive-environment requirement of the IDEA but also found no evidence of intent to

discriminate on the part of Defendantsin fact, the Court found Defendants were operating with

a sincere and heartfelt desire to do what was in L.H.s best interest. (See Docs. 172 & 202.)

Thus, if discriminatory intent is required, the Court will be unable to grant Plaintiffs motion for

summary judgment.

In support of its discriminatory-intent argument, Defendants rely primarily on the standard

set forth in Campbell v. Board of Education of Centerline School District, 58 F. Appx 162, 167

(6th Cir. 2003). Campbell clearly states Section 504 required the plaintiffs in that case to prove

the alleged violation was discriminatory, as either bad faith or gross misjudgment must be shown

the use of supplementary aids and services cannot be achieved satisfactorily. 34 C.F.R.
104.34(a).

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 before a [Section] 504 violation can be made out, at least in the context of handicapped children.

Id. (quoting Monahan v. Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982)).

The nuance in the present case arises because Plaintiffs are seeking only equitable

remedies, as opposed to damages. The 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 other circuits are split on the issue. Compare S.H. v. Lower Merion Sch. Dist.,

729 F.3d 248, 26162 (3d Cir. 2013) (finding a claim for damages under Section 504 was subject

to a requirement of discriminatory intent, but a claim for liability or violation of Section 504 does

not require proof of discriminatory intent) and M.G. v. Williamson Cty, Bd. of Educ., No. 3:15-cv-

946, at *40 (M.D. Tenn. Oct. 3, 2016) (However, where a plaintiff does not seek money damages

under [Section] 504 and the [Americans with Disabilities Act], the plaintiff does not need to

establish that the school was deliberately indifferent when it failed to accommodate her educational

needs.) (citing A.G. v. Paradise Valley Sch. Dist. No. 69, 815 F.3d 1195, 1207 (9th Cir. 2016)

with D.B. v. Esposito, 675 F.3d 26, 40 (1st Cir. 2012) (requiring plaintiffs to make an additional

showing of disability-based animus to succeed on claims under Title II and Section 504).

The Eastern District of Tennessee recently addressed this very issue in I.L. v. Knox County

Board of Education, 2017 WL 2610505, at *1517 (E.D. Tenn. June 15, 2017). Judge Reeves

extensively analyzed both the statutes and existing case law, and ultimately determined [t]here is

nothing to indicate that a plaintiff must ever prove intentional discriminationor deliberate

indifferenceunder Title II and Section 504.4 Id. As grounds for this conclusion, Judge Reeves

4
This finding actually goes beyond what is required in this case, as Judge Reeves found a
plaintiff could recover damages under Title II and Section 504 without a showing of discriminatory
intent. Here, the Court need only decide whether a plaintiff can receive an equitable remedy
without a showing of discriminatory intent. Judge Reevess decision on that front is covered early
in her discussion of the issue[Plaintiff] maintains that, because she seeks only injunctive relief

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 distinguished between Title VI of the Civil Rights Act (Title VI), which provides for the

remedies available under Title II and Section 504, and Title II and Section 504 themselves, on the

ground that Title II and Section 504 provide a right to sue for both intentional and unintentional

discrimination, unlike Title VI, which only provides a right to sue for intentional discrimination.

Id. (citing Alexander v. Choate, 469 U.S. 287, 29497 (1985); Ability Ctr. of Greater Toledo v.

City of Sandusky, 385 F.3d 901, 908 (6th Cir. 2004)).

This distinction is critical, as many of the courts requiring a showing of intentional

discrimination to succeed on claims under Title II and Section 504 conflate the requirements of

Title VI, specifically the requirement to show intentional discrimination, with the requirements of

Title II and Section 504, because the remedies available under Title II and Section 504 are drawn

from Title VI via 42 U.S.C. 12133 (the remedies, procedures, and rights of Title II are those of

Section 504) and 29 U.S.C. 794a(a)(2) (the remedies, procedures, and rights of Section 504 are

those of Title VI). While the same remedies, procedures, and rights are available under each of

these statutes, what is required to obtain a given remedy under each statute is not necessarily the

same, as the statutes have different purposes. Title VI provides a right to sue only for intentional

discrimination, while Title II and Section 504 provide a right to sue for both intentional and

unintentional discrimination. I.L., 2017 WL 2610505, at *15 (citing Alexander, 469 U.S. at 294

97; Ability Ctr., 385 F.3d at 908). There is thus no reason to apply Title VIs intentional

discrimination requirement to Title II and Section 504 when a party is seeking only an equitable

remedy under these statutes. S.H, 729 F.3d at 26162; I.L., 2017 WL 2610505, at *1517; M.G.,

No. 3:15-cv-946, at *40 (M.D. Tenn. Oct. 3, 2016).

on her Title II and Section 504 claims, she need not prove deliberate indifference. [Plaintiff] is
correct.

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 The Court thus concludes Plaintiffs need not show intentional discrimination on the part of

Defendants to succeed on their motion. Accordingly, the Court GRANTS Plaintiffs motion for

summary judgment.

B. Defendants Motion for Summary Judgment

Defendants motion for summary judgment mirrors Plaintiffs motion for summary

judgment. As a result, the Court has already reached conclusions in Plaintiffs favor on the issues

raised in Defendants motion. The underlying facts which constituted a violation of the IDEAs

least-restrictive-environment requirement also constitute violations of Title II and Section 504s

analogous requirements. Contrary to Defendants argument, the Court concludes Defendants lack

of discriminatory intent does not prevent Plaintiffs from proving a violation of Title II and Section

504, at least when Plaintiffs seek only an equitable remedy.5 The Court thus DENIES Defendants

motion for summary judgment.

IV. CONCLUSION

For the reasons explained above, the Court GRANTS Plaintiffs second motion for

summary judgment (Doc. 185) and DENIES Defendants motion for summary judgment (Doc.

186). The parties may file a status report within seven days of the entry of this order addressing

any further action the Court must take prior to entry of a judgment order.

SO ORDERED.

ENTER:

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

5
The Court notes, however, it considered Defendants conduct, specifically Defendants
lack of discriminatory intent, when denying Plaintiffs motion for an equitable remedy in response
to the Courts previous IDEA finding. (Doc. 202.)

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