United States District Court Southern District of West Virginia (Charleston) CIVIL DOCKET FOR CASE #: 2:20-cv-00057

25BG,LC-1

G.T. et al v. Kanawha County Schools et al Assigned to: Judge Irene C. Berger Cause: 20:1401 Individuals with Disabilities Education Act (IDEA)

Date Filed: 01/24/2020 Jury Demand: None Nature of Suit: 448 Civil Rights: Education Jurisdiction: Federal Question

Plaintiff
G. T. by his Parents

represented by Blaire Malkin MOUNTAIN STATE JUSTICE, INC. 1217 Quarrier Street Charleston, WV 25301 304-344-3144 Email: blaire@msjlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin Snyder DISABILITY RIGHTS OF WEST VIRGINIA Suite 400 1207 Quarrier Street Charleston, WV 25301 304/346-0847 Fax: 304/346-0867 Email: esnyder@drofwv.org TERMINATED: 06/30/2020 LEAD ATTORNEY

Ira A. Burnim BAZELON CENTER FOR MENTAL HEALTH LAW Suite 220 1090 Vermont Avenue NW Washington, DC 20005 202-467-5730 Fax: 202-223-0409 Email: irabster@gmail.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Klass LATHAM & WATKINS Suite 2800 330 North Wabash Avenue Chicago, IL 60611 312-876-7700 Fax: 312-993-9767 Email: karen.klass@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kirstin Scheffler Do LATHAM & WATKINS Suite 2800 300 North Wabash Avenue Chicago, IL 60611 312-876-7700 Email: kirstin.schefflerdo@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lewis Bossing BAZELON CENTER FOR MENTAL HEALTH LAW Suite 220 1090 Vermont Avenue NW Washington, DC 20005 202-467-5730 Email: lewisb@bazelon.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lori (Peters) Waller DISABILITY RIGHTS OF WEST VIRGINIA 4th Floor 1207 Quarrier Street Charleston, WV 25301 304-346-0847 Email: lwaller@drofwv.org

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes MOUNTAIN STATE JUSTICE, INC. 325 Willey Street Morgantown, WV 26505 304/326-0188 Fax: 304/326-0189 Email: lydia@msjlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin M. Hulshizer LATHAM & WATKINS Suite 2800 330 North Wabash Avenue Chicago, IL 60611 312-876-7700 Fax: 312-993-9767 Email: robin.hulshizer@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shira T. Wakschlag THE ARC OF THE UNITED STATES, INC. Suite 1200 1825 K Street NW Washington, DC 20006 202-534-3708 Email: shira@thearc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael J. Faris LATHAM & WATKINS Suite 2800 330 North Wabash Avenue Chicago, IL 60611 312-876-7700 Email: michael.faris@lw.com

Plaintiff
Michelle and

TERMINATED: 07/31/2020 PRO HAC VICE
represented by Blaire Malkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Snyder (See above for address) TERMINATED: 06/30/2020 LEAD ATTORNEY
Ira A. Burnim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Klass (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lori (Peters) Waller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shira T. Wakschlag (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Jamie T. on behalf of himself and all similarly situated individuals, and

Michael J. Faris (See above for address) TERMINATED: 07/31/2020 PRO HAC VICE
represented by Blaire Malkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Snyder (See above for address) TERMINATED: 06/30/2020 LEAD ATTORNEY
Ira A. Burnim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Klass (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lori (Peters) Waller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shira T. Wakschlag (See above for address)

Plaintiff
K. M. by his Parents

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael J. Faris (See above for address) TERMINATED: 07/31/2020 PRO HAC VICE
represented by Blaire Malkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ira A. Burnim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Klass (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lori (Peters) Waller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shira T. Wakschlag (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff
Danielle M. and

ATTORNEY TO BE NOTICED
Michael J. Faris (See above for address) TERMINATED: 07/31/2020 PRO HAC VICE
represented by Blaire Malkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ira A. Burnim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Klass (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lori (Peters) Waller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shira T. Wakschlag (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Steven M. on behalf of themselves and all similarly situated individuals, and

Michael J. Faris (See above for address) TERMINATED: 07/31/2020 PRO HAC VICE
represented by Blaire Malkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ira A. Burnim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Klass (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lori (Peters) Waller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shira T. Wakschlag (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael J. Faris (See above for address)

Plaintiff The Arc of West Virginia

TERMINATED: 07/31/2020 PRO HAC VICE
represented by Blaire Malkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Snyder (See above for address) TERMINATED: 06/30/2020 LEAD ATTORNEY
Ira A. Burnim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Klass (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kirstin Scheffler Do (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lewis Bossing (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lori (Peters) Waller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Kanawha County Schools and TERMINATED: 04/10/2020

Robin M. Hulshizer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shira T. Wakschlag (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael J. Faris (See above for address) TERMINATED: 07/31/2020 PRO HAC VICE
represented by Gabriele Wohl BOWLES RICE P. O. Box 1386 Charleston, WV 25325-1386 304-347-1137 Fax: 304-347-1746 Email: gwohl@bowlesrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Mark Adkins BOWLES RICE P. O. Box 1386 Charleston, WV 25325-1386 304/347-1100 Fax: 304/347-1756 Email: madkins@bowlesrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Scott Boothby BOWLES RICE United Square, Fifth Floor 501 Avery Street

Defendant The Board of Education of the County of Kanawha and
Defendant Ron Duerring Superintendent, Kanawha County Schools, in his official capacity TERMINATED: 07/16/2020

Parkersburg, WV 26102-0049 304-420-5535 Email: rboothby@bowlesrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Austin Smith , II BOWLES RICE 600 Quarrier Street Charleston, WV 25301 304-347-1133 Fax: 304-347-1746 Email: asmith@bowlesrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gabriele Wohl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Mark Adkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Scott Boothby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Austin Smith , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gabriele Wohl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Mark Adkins (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Scott Boothby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Austin Smith , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/24/2020 01/24/2020 01/24/2020 01/24/2020
01/24/2020 01/24/2020 01/24/2020

# Docket Text
1 CLASS ACTION COMPLAINT. Filing Fee $400.00. Receipt # AWVSDC-7523113. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons) (mms)
2 DISCLOSURE STATEMENT PURSUANT TO RULE 7.1, Federal Rules of Civil Procedure, by Plaintiff The Arc of West Virginia. (Milnes, Lydia) (Modified on 1/28/2020 to correct link) (kew).
3 STATEMENT OF VISITING ATTORNEY from Karen Klass on behalf of G. T. Local counsel: Lydia C. Milnes. Fee $50.00. Receipt # AWVSDC-7523683. (Milnes, Lydia)
4 STATEMENT OF VISITING ATTORNEY Michael Faris on behalf of G. T. Local counsel: Lydia C. Milnes. Fee $50.00. Receipt # AWVSDC-7523700. (Milnes, Lydia) (Modified on 1/28/2020 to add signatures and replace image) (kew).
5 STATEMENT OF VISITING ATTORNEY from Ira A. Burnim on behalf of G. T. Local counsel: Lydia C. Milnes. Fee $50.00. Receipt # AWVSDC-7523710. (Milnes, Lydia)
6 STATEMENT OF VISITING ATTORNEY from Lewis Bossing on behalf of G. T. Local counsel: Lydia C. Milnes. Fee $50.00. Receipt # AWVSDC-7523720. (Milnes, Lydia)
7 ELECTRONIC SUMMONS ISSUED as to Ron Duerring and Kanawha County Schools, re: 1 Complaint. Summons returnable 21 days. Instructions to Counsel: This is your electronic summons. Please print as many copies of the Summons and Complaint as are necessary to effectuate service under Fed. R. Civ. P. 4. See Proof of Service page of this Summons form for filing a return of service if

01/24/2020 01/24/2020 01/27/2020
01/28/2020 02/05/2020 02/06/2020 02/18/2020 02/18/2020 02/25/2020 02/25/2020

required by Fed. R. Civ. P. 4(l). (Attachment: # 1 Summons as to Kanawha County Schools) (mms)
8 STATEMENT OF VISITING ATTORNEY from Shira T. Wakschlag on behalf of G. T. Local counsel: Lydia C. Milnes. Fee $50.00. Receipt # AWVSDC-7523731. (Milnes, Lydia)
CASE assigned to Judge Irene C. Berger. (klc) (Entered: 01/27/2020)
9 ADMINISTRATIVE ORDER FOR ASSIGNMENT AND REFERRAL TO MAGISTRATE JUDGES OF CIVIL ACTIONS ASSIGNED TO JUDGE IRENE C. BERGER ENTERED NOVEMBER 12, 2019. This matter referred to Magistrate Judge Aboulhosn for Discovery. (cc: attys; any unrepresented party) (klc)
NOTICE OF DOCKET CORRECTION re: 4 Statement of Visiting Attorney. ERROR: Image did not contains signatures. CORRECTION: Signatures added and image replaced. (kew)
10 NOTICE OF CHANGE OF ATTORNEY INFORMATION by Blaire Malkin updating name and/or firm information on behalf of G. T. (Malkin, Blaire) (Modified on 2/6/2020 to correct signature and replace image) (kew).
NOTICE OF DOCKET CORRECTION re: 10 Notice of Change of Attorney Information. ERROR: Image contained incorrect signature. CORRECTION: Signature corrected and image replaced. (kew)
11 SUMMONS RETURNED EXECUTED by Personal Service for Kanawha County Schools. Kanawha County Schools served on 2/18/2020, answer due 3/10/2020. Summons served on Kanawha County Schools. (Milnes, Lydia)
12 SUMMONS RETURNED EXECUTED by Personal Service for Ron Duerring. Ron Duerring served on 2/18/2020, answer due 3/10/2020. Summons served on Dr. Ron Duerring. (Milnes, Lydia)
13 NOTICE OF CHANGE OF ATTORNEY INFORMATION by Lewis Bossing updating name and/or firm information on behalf of Michelle, G. T., Jamie T., The Arc of West Virginia. (Bossing, Lewis)
14 NOTICE OF CHANGE OF ATTORNEY INFORMATION by Lewis Bossing for Ira A. Burnim updating name and/or firm

03/09/2020 03/20/2020 03/20/2020 03/20/2020 03/25/2020
03/31/2020
03/31/2020

information on behalf of Michelle, G. T., Jamie T., The Arc of West Virginia. (Bossing, Lewis)
15 STIPULATION FOR EXTENSION TO FILE RESPONSIVE PLEADING re: 1 Complaint to 3/20/2020 by Ron Duerring, Kanawha County Schools, G. T., Michelle, Jamie T., The Arc of West Virginia. (Adkins, J.) (Modified on 3/10/2020 to add party filers) (kew).
16 ANSWER TO 1 Complaint by Kanawha County Schools. (Adkins, J.)
17 PARTIAL MOTION by Ron Duerring, Kanawha County Schools to Dismiss 1 Complaint. (Adkins, J.) (Modified on 3/23/2020 to add link to #1 complaint) (kew).
18 MEMORANDUM OF LAW by Ron Duerring, Kanawha County Schools in support of 17 PARTIAL MOTION by Ron Duerring, Kanawha County Schools to Dismiss 1 Complaint. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Adkins, J.)
19 ORDER AND NOTICE: Rule 12(b) Motions 4/22/2020. Rule 26(f) Meeting 4/29/2020. Last day to file report of Rule 26(f) Meeting 5/6/2020. Scheduling Conference at 2:00 PM on 5/20/2020 in Charleston. Entry of Scheduling Order 5/27/2020. Last Day to make Rule 26(a)(1) disclosures 6/3/2020. Signed by Judge Irene C. Berger on 3/25/2020. (cc: counsel of record; any unrepresented party) (kew)
20 JOINT MOTION by Michelle, G. T., Jamie T., The Arc of West Virginia, Kanawha County Schools, Ron Duerring to Extend Bbriefing Period for the 17 PARTIAL MOTION by Ron Duerring, Kanawha County Schools to Dismiss 1 Complaint to 5/25/2020. (Attachment: # 1 Proposed Order)(Milnes, Lydia) (Modified on 3/31/2020 to add party filers) (kew).
21 ORDER granting 20 JOINT MOTION to Extend Briefing Period. The Plaintiffs shall file an amended complaint by 4/10/2020, and the Defendants shall file a responsive pleading within 30 days thereafter. The Court further directs that the Defendants' 17 Partial Motion to Dismiss Complaint be terminated as moot, and that leave be granted to file a new motion if warranted. Signed by Judge Irene C. Berger on 3/31/2020. (cc: counsel of record; any unrepresented party) (lca)

04/10/2020 05/06/2020 05/08/2020
05/11/2020 05/11/2020 05/11/2020 05/22/2020 05/26/2020 05/26/2020

22 FIRST AMENDED CLASS ACTION COMPLAINT by Michelle, Jamie T., G. T., K. M., Danielle M., Steven M. against Ron Duerring, Board of Education of the County of Kanawha (ts)
23 RULE 26(f) REPORT OF PLANNING MEETING by Board of Education of the County of Kanawha, Ron Duerring, G. T., Michelle, Jamie T., K. M., Danielle M., Steven M., The Arc of West Virginia. (Adkins, J.) (Modified on 5/7/2020 to add party filers) (kew).
24 BIFURCATED SCHEDULING ORDER directing that the Scheduling Conference is CANCELLED and that this case shall proceed as follows: Motion to Dismiss due by 06/05/2020. Amendments and Joinder due by 9/28/2020. Discovery requests due by 10/16/2020. All discovery, including disclosures required by Fed. R. Civ. P. 26(a)(2), but not disclosures required by Fed. R. Civ. P. 26(a)(3), are due by 11/13/2020. Depositions to be completed by 12/11/2020. Class Certification due by 12/11/2020. Rule 26(f) Report due by 1/15/2021. Signed by Judge Irene C. Berger on 5/8/2020. (cc: counsel of record; any unrepresented party) (kew)
25 ANSWER TO 22 First Amended Class Action Complaint by Board of Education of the County of Kanawha. (Adkins, J.)
26 PARTIAL MOTION by Board of Education of the County of Kanawha, Ron Duerring to Dismiss 22 First Amended Class Action Complaint. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Adkins, J.)
27 MEMORANDUM OF LAW by Board of Education of the County of Kanawha, Ron Duerring in support of 26 PARTIAL MOTION by Board of Education of the County of Kanawha, Ron Duerring to Dismiss 22 First Amended Class Action Complaint. (Adkins, J.)
28 CERTIFICATE OF SERVICE by Danielle M., K. M., Steven M., Michelle, G. T., Jamie T., The Arc of West Virginia for First Set of Interrogatories and Requests for Production of Documents to Defendants. (Milnes, Lydia)
29 UNOPPOSED MOTION by Danielle M., K. M., Steven M., Michelle, G. T., Jamie T., The Arc of West Virginia for Leave to Exceed the Page Limitation in Their Opposition to Partial Motion to Dismiss. (Milnes, Lydia)
30 MEMORANDUM by Danielle M., K. M., Steven M., Michelle, G. T., Jamie T., The Arc of West Virginia in opposition to 26 PARTIAL MOTION by Board of Education of the County of

05/27/2020
06/02/2020 06/02/2020
06/02/2020 06/03/2020 06/03/2020 06/05/2020 06/05/2020 06/05/2020 06/05/2020

Kanawha, Ron Duerring to Dismiss 22 First Amended Class Action Complaint. (Attachment: # 1 Exhibit A)(Milnes, Lydia)
31 ORDER granting 29 MOTION by Danielle M., K. M., Steven M., Michelle, G. T., Jamie T., The Arc of West Virginia to Exceed Page Limit for Petitioner's Response Brief in Opposition to Defendants' Partial Motion to Dismiss. Signed by Judge Irene C. Berger on 5/27/2020. (cc: counsel of record; any unrepresented party) (ts)
32 MOTION by Board of Education of the County of Kanawha, Ron Duerring for Protective Order and to Stay Discovery Pending Ruling on Defendants' Motion to Dismiss. (Attachment: # 1 Exhibit A)(Adkins, J.)
33 MEMORANDUM by Board of Education of the County of Kanawha, Ron Duerring in support of 32 MOTION by Board of Education of the County of Kanawha, Ron Duerring for Protective Order and to Stay Discovery Pending Ruling on Defendants' Motion to Dismiss. (Adkins, J.)
34 REPLY by Board of Education of the County of Kanawha, Ron Duerring to 30 Memorandum In Opposition. (Adkins, J.)
35 CERTIFICATE OF SERVICE by G. T., Michelle, Jamie T., K. M., Danielle M., Steven M., The Arc of West Virginia for Rule 26(a)(1) Disclosures. (Milnes, Lydia) (Modified on 6/4/2020 to add party filers) (kew).
36 CERTIFICATE OF SERVICE by Board of Education of the County of Kanawha, Ron Duerring for Rule 26(a)(1) Initial Disclosures. (Adkins, J.)
37 MOTION by Lori (Peters) Waller for Withdrawal of Counsel on behalf of Danielle M., K. M., Steven M., Michelle, G. T., Jamie T., The Arc of West Virginia. (Waller, Lori)
38 INCORRECT IMAGE; IMAGE REMOVED. (Modified on 6/5/2020 to remove incorrectly image) (kew).
39 CERTIFICATE OF SERVICE by Lori (Peters) Waller for Motion for Withdrawal of Counsel on behalf of Danielle M., K. M., Steven M., Michelle, G. T., Jamie T., The Arc of West Virginia. (Waller, Lori)
NOTICE OF DOCKET CORRECTION re: #38 Motion to Withdraw. ERROR: Incorrect image attached. CORRECTION: Image removed. (kew)

06/15/2020

40 OPPOSITION by K. M., G. T., The Arc of West Virginia to 32 MOTION by Board of Education of the County of Kanawha, Ron Duerring for Protective Order and to Stay Discovery Pending Ruling on Defendants' Motion to Dismiss. (Attachments: # 1 Declaration, # 2 Exhibit 1, # 3 Exhibit 2)(Milnes, Lydia)

06/19/2020

41 REPLY by Board of Education of the County of Kanawha, Ron Duerring to 40 Response In Opposition. (Adkins, J.)

06/22/2020

42 ORDER denying Defendants' 32 MOTION for Protective Order and 32 MOTION to Stay. The parties are further ORDERED to meet and confer concerning Plaintiffs' proposed protective order and to submit their agreed protective order within three (3) days from the date of this Order for entry. In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the ruling set forth above on this non-dispositive Motion may be contested by filing within 14 days, objections to this Order with District Judge Irene C. Berger. Signed by Magistrate Judge Omar J. Aboulhosn on 6/22/2020. (cc: counsel of record) (mk)

06/25/2020

43 PROPOSED ORDER Agreed Protective Order by Board of Education of the County of Kanawha, Ron Duerring, G. T., Michelle, Jamie T., K. M., Danielle M., Steven M., The Arc of West Virginia. (Adkins, J.) (Modified on 6/25/2020 to add party filers) (kew).

06/26/2020

44 AGREED PROTECTIVE ORDER Setting forth the terms for the handling of confidential documents. Signed by Magistrate Judge Omar J. Aboulhosn on 6/26/2020. (cc: counsel of record; any unrepresented party) (ts)

06/30/2020

45 ORDER directing that the 37 MOTION for Withdrawal of Counsel be GRANTED and that Erin Snyder be removed as counsel of record in this matter. Signed by Judge Irene C. Berger on 6/30/2020. (cc: counsel of record; any unrepresented party) (btm)

07/16/2020 46

MEMORANDUM OPINION AND ORDER: The Court ORDERS that the Defendants' 26 PARTIAL MOTION to Dismiss Amended Complaint be DENIED as to the class claims and The Arc of West Virginia and GRANTED as to Superintendent Ron Duerring; the Court ORDERS that Ron Duerring, Superintendent, Kanawha County Schools, sued in his official capacity, be DISMISSED from this suit. Signed by Judge Irene C. Berger on 7/16/2020. (cc: counsel of record; any unrepresented party) (slr)

07/27/2020 07/30/2020 07/31/2020 07/31/2020 07/31/2020 07/31/2020 08/10/2020 08/13/2020 08/13/2020 08/28/2020

47 CERTIFICATE OF SERVICE by Board of Education of the County of Kanawha for Responses to First Set of Interrogatories and Requests for Production. (Boothby, Richard)
48 AMENDED ANSWER to 22 First Amended Class Action Complaint by Board of Education of the County of Kanawha. (Adkins, J.) (Modified on 7/30/2020 to correct link) (kew).
49 NOTICE OF WITHDRAWAL OF APPEARANCE by Michael J. Faris on behalf of Danielle M., K. M., Steven M., Michelle, G. T., Jamie T., The Arc of West Virginia. (Faris, Michael)
50 STATEMENT OF VISITING ATTORNEY from Kirstin Scheffler Do on behalf of G. T., The Arc of West Virginia. Local counsel: Lydia Milnes. Fee $50.00. Receipt # AWVSDC-7692624. (Milnes, Lydia) (Modified on 8/3/2020 to add party filer) (kew).
51 STATEMENT OF VISITING ATTORNEY from Robin M. Hulshizer on behalf of G. T., The Arc of West Virginia. Local counsel: Lydia Milnes. Fee $50.00. Receipt # AWVSDC-7692665. (Milnes, Lydia) (Modified on 8/3/2020 to add party filer) (kew).
52 CERTIFICATE OF SERVICE by Board of Education of the County of Kanawha for First Supplement to Answers and Responses to First Set of Interrogatories and Requests for Production. (Boothby, Richard)
53 CERTIFICATE OF SERVICE by Board of Education of the County of Kanawha for First Set of Interrogatories and Requests for Production. (Adkins, J.)
54 CERTIFICATE OF SERVICE by G. T., The Arc of West Virginia, Steven M., Danielle M., K. M., Jamie T., Michelle for First Set of Interrogatories (Revised Nos 1 & 7). (Milnes, Lydia) (Modified on 8/14/2020 to add party filers) (kew).
55 CERTIFICATE OF SERVICE by G. T., The Arc of West Virginia, Steven M., Danielle M., K. M., Jamie T., Michelle for Second Set of Requests for Production. (Milnes, Lydia) (Modified on 8/14/2020 to add party filers) (kew).
56 CERTIFICATE OF SERVICE by Board of Education of the County of Kanawha for Defendant's Second Supplement to Answers and Responses to Plaintiffs' First Set of Interrogatories and Requests for Production. (Boothby, Richard)

08/31/2020 09/04/2020 09/09/2020 09/30/2020 09/30/2020 10/01/2020

57 CERTIFICATE OF SERVICE by Board of Education of the County of Kanawha for Third Supplement to Answers and Responses to First Set of Interrogatories and Requests for Production. (Boothby, Richard)
58 CERTIFICATE OF SERVICE by Board of Education of the County of Kanawha for ourth Supplement to Answers and Responses to First Set of Interrogatories and Requests for Production. (Boothby, Richard)
59 CERTIFICATE OF SERVICE by G. T., Michelle, Jamie T., K. M., Danielle M., Steven M., The Arc of West Virginia for Response to First Set of Interrogatories and Response to First Requests for Production of Documents. (Milnes, Lydia) (Modified on 9/9/2020 to add party filers) (kew).
60 JOINT MOTION by Board of Education of the County of Kanawha, G. T., Michelle, Jamie T., K. M., Danielle M., Steven M., The Arc of West Virginia to Extend Deadlines re: 24 Bifurcated Scheduling Order. (Adkins, J.) (Modified on 10/1/2020 to add link to #24 scheduling order and to add party filers) (kew).
61 CERTIFICATE OF SERVICE by G. T., G. T., Michelle, Jamie T., K. M., Danielle M., Steven M., The Arc of West Virginia for First Supplemental Response to First Requests for Production of Documents. (Milnes, Lydia) (Modified on 10/1/2020 to add party filers) (kew).
62 AMENDED BIFURCATED SCHEDULING ORDER granting the 60 JOINT MOTION by Board of Education of the County of Kanawha, G. T., Michelle, Jamie T., K. M., Danielle M., Steven M., The Arc of West Virginia to Extend Deadlines; amending the 24 Bifurcated Scheduling Order as follows: Parties shall respond to all outstanding discovery by 12/15/2020; parties shall complete all class certification discovery requests by 1/15/2021; all class certification discovery shall be completed by 3/17/2021; last date to complete depositions is 4/7/2021. Plaintiff shall file any motion for class certification by 4/16/2021; responses shall be filed and served within 14 days of service of the motion; replies shall be filed and served within 7 days from date of service of the response; Parties shall submit a revised Rule 26(f) Report by 5/17/2021. Signed by Judge Irene C. Berger on 10/1/2020. (cc: counsel of record; any unrepresented party) (slr)

PACER Service Center

Transaction Receipt

10/18/2020 23:14:49

PACER Login: CRClearinghouse Client Code: Simeck

Description: Docket Report Search Criteria: 2:20-cv-00057

Billable Pages: 14

Cost:

1.40

Exempt flag: Not Exempt

Exempt reason: Not Exempt

 
 Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 1 of 32 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

G.T., by his Parents Michelle and Jamie T., on behalf of himself and all similarly situated individuals, and The Arc of West Virginia,

Plaintiffs,

v.

Civ. Act. No. _2_:_2_0_-c_v_-_0_0_0_5_7

KANAWHA COUNTY SCHOOLS, and RON DUERRING, Superintendent, Kanawha County Schools, in his official capacity,

Defendants.

_________________________________________/

CLASS ACTION COMPLAINT

INTRODUCTION

1. Defendant Kanawha County Schools (“KCS”) unlawfully fails to provide effective

behavior supports for a class of its students with disabilities, leading to unjustified disciplinary

removals from the classroom due to the students’ behaviors. KCS punishes students for their

behaviors and removes them from the classroom instead of developing and implementing effective

behavior supports—required by law—that would allow these students to succeed in general

education settings alongside their peers without disabilities.

2. Plaintiff G.T. is a third-grade KCS student diagnosed with autism and attention deficit

hyperactivity disorder (“ADHD”). G.T. has significant strengths and could be educated

successfully in a general education classroom, with effective behavior supports. However, he has

been denied effective behavior supports at his KCS public school and, as a result, has experienced

disciplinary removals from school. Because of KCS’s failures to provide G.T. with effective

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 2 of 32 PageID #: 2
behavior supports, and subsequent removals of G.T. from the classroom, he is not making appropriate progress.
3. Plaintiff G.T.’s situation is representative of many students with behavior support needs within KCS. KCS fails to provide students with disabilities the instruction and services, including behavior supports, they need to succeed in school. As a result, these students drop out at a high rate and experience repeated yet avoidable disciplinary sanctions, including in-school and out-of-school suspensions, undocumented “send homes,” placement in alternative schools, expulsions, and referrals to law enforcement. Many students with behavior support needs are pushed into segregated classrooms where they interact only with other students with disabilities, and where there is inadequate (and sometimes no) instruction and inappropriate and ineffective efforts at behavior management.
4. Plaintiffs G.T., on behalf of himself and others similarly situated, and The Arc of West Virginia bring this class action complaint for declaratory, injunctive, and compensatory relief to challenge KCS’s systemic policies, practices, and procedures that violate federal and state law.
5. KCS’s actions violate the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq., Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794(a), Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., the West Virginia Human Rights Act (“HRA”), W. Va. Code § 5-11-9 et seq., and West Virginia Policy 2419 (“WV Policy 2419”).
6. The IDEA requires public schools to provide all eligible children with disabilities a free appropriate public education (“FAPE”). 20 U.S.C. § 1412(a)(1). To meet their FAPE obligation, schools must provide “special education and related services.” 42 U.S.C. § 1401(9). The standard for providing a FAPE is a “demanding” one: students with disabilities must receive “appropriately
2

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 3 of 32 PageID #: 3
ambitious” special education that gives them “the chance to meet challenging objectives.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017). This standard must be met by public schools in West Virginia, including schools within KCS. See R.F v. Cecil Cty. Pub. Sch., 919 F.3d 237 (4th Cir. 2019). See also W. Va. § 18-20-1; WV Policy 2419.
7. Section 504 and Title II of the ADA prohibit public entities, including public schools, from discriminating against students on the basis of their disabilities. 29 U.S.C. § 794; 42 U.S.C. § 12132 et seq. They require public schools to modify their policies, practices, and procedures as needed to avoid discrimination, and to provide students with disabilities equal educational opportunities. Id.
8. Under federal law, for students whose behavior impedes learning, public education must include effective behavior supports. 20 U.S.C. § 1400(c)(5). These supports may include, but are not limited to, Functional Behavior Assessments (“FBAs”) of the student’s behaviors, Behavior Intervention Plans (“BIPs”) identifying interventions addressing those behaviors, and other positive behavior interventions and supports. With such supports, G.T. and the Plaintiff class can learn, make progress, and realize bright futures in general education classrooms in KCS alongside their peers without disabilities. Without them, they are at high risk of doing poorly in school, becoming involved in the delinquency or criminal systems, and being unable to obtain a job or live independently as they transition to adulthood.
9. KCS has no functioning system for identifying children with disabilities who need behavior supports and providing effective supports to them. Instead, all too often it subjects them to formal (i.e. suspensions or expulsions) or informal (i.e. requests to parents to take or keep students home) removals from school and school activities for behaviors related to their
3

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 4 of 32 PageID #: 4
disabilities. Had the students been provided the effective behavior supports to which they are entitled, it is likely that many of these disciplinary removals would not have been necessary.
10. Over the past several months, Plaintiff G.T. repeatedly raised concerns with KCS regarding its failure to provide effective behavior supports to students with disabilities who need them to receive a FAPE and avoid discrimination. These concerns were raised through correspondence with KCS as well as through a formal due process complaint filed with the West Virginia Department of Education. However, KCS has not acted to remedy the systemic and urgent failures that Plaintiffs have identified, leaving Plaintiffs with no recourse other than this action.
11. Plaintiffs seek injunctive and declaratory relief for ongoing violations of the IDEA, Section 504, the ADA, and West Virginia law, including an order that Defendants provide Plaintiff G.T. and the Plaintiff class with the effective behavior supports they need to receive a FAPE and avoid discrimination, and enable them to be educated in general education classrooms with their peers.
PARTIES A. Plaintiffs
12. Plaintiff G.T., a minor, seeks to proceed using a pseudonym. G.T. brings this action by and through his parents, Michelle and Jamie T., as permitted by Federal Rule of Civil Procedure 17(c).
13. Plaintiff G.T. is a nine-year-old student with autism and ADHD attending third grade at Bridgeview Elementary School in KCS. He is a student with a disability who is eligible for special education under the IDEA and West Virginia law. He is also a qualified individual with a disability under Section 504 and the ADA. As a child with an impairment that substantially limits
4

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 5 of 32 PageID #: 5
his ability to learn, G.T. is also an individual with a disability within the meaning of the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. Further, G.T. has exhausted all administrative remedies available to him.
14. Plaintiff The Arc of West Virginia (“The Arc WV”) is a not-for-profit membership organization whose primary office is located in Parkersburg, West Virginia. The Arc WV is dedicated to promoting and protecting the rights of people with intellectual and developmental disabilities (“I/DD”), including autism, throughout the state. The Arc WV engages in public policy advocacy and develops programs to support people with I/DD to learn, live, and work in their communities. Supporting the rights of students with disabilities to receive the supports and services they need to make progress in their neighborhood schools alongside their peers without disabilities has been a priority of The Arc WV throughout its history. As The Arc WV’s position statement on education states: “All children and youth with…I/DD must receive a free appropriate public education that includes fair evaluation, ambitious goals, challenging objectives, the right to progress, individualized supports and services, high quality instruction, and access to the general education curriculum in age-appropriate inclusive settings.”1
15. The Arc WV serves people with I/DD statewide directly and through four affiliated member chapters throughout the state, including The Arc of the Three Rivers based in Kanawha County. The Arc WV has over 2,400 members throughout the state, including over 200 in Kanawha County. In 2019, The Arc WV provided assistance to 130 families state-wide who sought advice and advocacy regarding special education services. Thirteen of these families reside in Kanawha County with children attending KCS schools. The Arc of the Three Rivers serves 180
1 Position Statement: Education, The Arc (2018), https://thearc.org/positionstatements/education/.
5

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 6 of 32 PageID #: 6
individuals annually, including more than twenty students who are eligible to attend KCS, seventeen of whom actually attend KCS. Plaintiff G.T. is a constituent and his mother is a member of both The Arc WV and The Arc of the Three Rivers. B. Defendants
16. Defendant KCS is the Local Education Agency (“LEA”) for Plaintiff G.T. and is responsible for providing a FAPE to him and to the Plaintiff class. “The LEA . . . is responsible for the direct provision of services under IDEA, including the development of an individualized education program (“IEP”) for each disabled student, the expenditure of IDEA funds to establish programs in compliance with IDEA, and the maintenance of records and the supply of information to the SEA [State Educational Agency] as needed to enable the SEA to function effectively in its supervisory role under IDEA.” Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 943 (4th Cir. 1997). KCS receives federal financial assistance and is a public entity as defined by Title II of the ADA.
17. Defendant Ron Duerring is the Superintendent of KCS and is responsible for the daily operations of KCS, including its programs and services for students with disabilities. See W.Va. Code § 18-4-10. Defendant Duerring is sued solely in his official capacity for prospective, injunctive relief.
JURISDICTION AND VENUE 18. This Court has original jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. § 1331 because those claims arise under federal law, specifically the IDEA, Section 504, and the ADA. Declaratory and injunctive relief are available pursuant to 28 U.S.C. §§ 2201-02. This Court has supplemental jurisdiction over Plaintiffs’ state law claims, because Plaintiffs’ claims arise out of the same case or controversy as Plaintiffs’ federal claims. See 28 U.S.C. § 1367.
6

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 7 of 32 PageID #: 7
19. Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims herein occurred in this district and because all Defendants maintain offices in this district and are responsible for enforcing the laws relevant to this litigation in this district.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 20. Plaintiff G.T. filed a Complaint and Request for Due Process Hearing with the West Virginia Department of Education’s Office of Federal Programs (“WV OFP”) on behalf of himself and a class of similarly situated students on June 5, 2019 seeking injunctive, declaratory, and compensatory relief. 21. In his due process complaint, G.T. alleged that KCS failed to provide him and class members with a FAPE, by failing to provide necessary behavior supports, as required by federal and state law, 20 U.S.C. § 1412(a), West Virginia Code § 18-20-1, and WV Policy 2419. The complaint also alleged violations of the ADA, 42 U.S.C. § 12132 and Section 504, 29 U.S.C. § 794. 22. A due process hearing was conducted on August 19, 20, and 21, 2019. 23. The WV OFP Hearing Officer dismissed the class allegations as well as the ADA and Section 504 claims from the complaint, finding that she lacked jurisdiction to consider such allegations. 24. The WV OFP Hearing Officer further denied all individual relief sought by G.T. 25. Through this process, Plaintiff G.T. has exhausted the administrative remedies provided by the IDEA, 20 U.S.C. § 1400 et seq. This Court therefore has express appellate jurisdiction over the administrative ruling issued pursuant to the IDEA. Id. at § 1415(i)(2).
7

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 8 of 32 PageID #: 8
26. G.T., on his own behalf, appeals the decision of the WV OFP Hearing Officer as to the denial of individual injunctive and compensatory relief.
CLASS ACTION ALLEGATIONS 27. Plaintiff G.T., on behalf of himself and all other similarly situated individuals, brings this action pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2) on behalf of the following class: All Kanawha County Schools students with disabilities who need behavior supports and have experienced disciplinary removals from any classroom. 28. The Plaintiff class is so numerous that joinder of all members is impracticable. During the 2015-2016 school year, a total of 4,299 of the 27,044 children in KCS received special education under the IDEA. An additional 1,216 of KCS children with disabilities received services under Section 504 in this same year. Of the students who received special education, 2,086 have disabilities such as emotional disturbance, autism, other forms of I/DD, or other health impairments including ADHD. Of the more than 5,500 students with disabilities in KCS receiving services under the IDEA and Section 504, many require behavior supports to make progress in their education.2 29. According to the West Virginia Department of Education, during the 2015-2016 school year, KCS subjected students served under the IDEA to 1,486 out-of-school suspensions. That same year, it subjected students served only under Section 504 to 411 out-of-school suspensions. KCS has continued to suspend students with disabilities at a high rate. The most recent data indicates that KCS’s use of disciplinary suspensions to punish students with disabilities has only
2 The 2015-2016 school year is the most recent school year for which the Civil Rights Data Collection has published data; however, Plaintiffs believe that the 2015-2016 school year is likely representative of the most recent school year.
8

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 9 of 32 PageID #: 9
increased: during the 2018-2019 school year, KCS had a total of 4,312 students with an IEP and subjected these students to at least 1,611 suspensions.3
30. There are questions of law and fact common to the claims of all class members, including (a) whether KCS’s failure to provide effective behavior supports and resulting disciplinary removals of students with disabilities violates the IDEA and WV Policy 2419,4 and (b) whether KCS’s failure to provide effective behavior supports and resulting disciplinary removals of students with disabilities violates Section 504, Title II of the ADA, and the HRA.
31. The claims of Plaintiff G.T. are typical of the claims of the class. Due to KCS’s policies, practices, procedures, acts, and omissions in failing to provide effective behavior supports to its students, both Plaintiff G.T. and the Plaintiff class are subjected to, or are at substantial risk of being subjected to, formal or informal disciplinary removals from school.
32. Plaintiff G.T. will fairly and adequately represent the interests of the class. Plaintiff G.T. possesses a strong personal interest in the subject matter of this lawsuit. Plaintiff G.T. is represented by experienced counsel with expertise in federal laws concerning disability rights and special education, as well as expertise in federal class action litigation. Counsel has the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action.
3 Plaintiffs requested this information via a Freedom of Information Act request to the West Virginia Department of Education and KCS. Plaintiffs were informed by the West Virginia Department of Education that pursuant to West Virginia data release/reporting procedures, certain data were suppressed to protect student privacy. Plaintiffs did not receive a response from KCS. 4 WV Policy 2419 follows the requirements of the IDEA and apply to school age students whose educational programs require special education and related services. Districts must adopt and implement appropriate special education policies and procedures to receive federal funds under the IDEA.
9

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 10 of 32 PageID #: 10
33. KCS’s policies, practices, procedures, acts, and omissions harm all class members in the same manner. KCS’s systematic failure to provide effective behavior supports and its subsequent disciplinary removals of students with disabilities from the classroom has deprived the Plaintiff class of the educational services to which they are entitled by federal law, subjected them to disability-based discrimination, and increased their risk of being subjected to such harms in the future. Final injunctive and declaratory relief is thus appropriate for the Plaintiff class as a whole.
STATUTORY BACKGROUND A. The Individuals with Disabilities Education Act (“IDEA”)
34. In enacting the IDEA, Congress found that “[d]isability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” 20 U.S.C. § 1400(c)(1).
35. Under the IDEA, public schools must provide “special education” and “related services” to all children with disabilities aged three to twenty-one residing in the state. 42 U.S.C. § 1401(9). Special education and related services for each child are designed by a team, including parents, teachers, and the student (if appropriate), and documented in a written IEP. 42 U.S.C. § 1414(d)(1)(A), (B).
36. The IDEA further requires states to ensure that “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes . . . cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5).
10

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 11 of 32 PageID #: 11
37. Together, these requirements are commonly referred to as the school’s duty to provide students a FAPE in the least restrictive environment (“LRE”). As the local educational agency for Kanawha County, KCS is responsible for ensuring that all eligible children with disabilities within the county receive a FAPE in the LRE. 20 U.S.C. §§ 1412(a)(11)(A), (a)(1), (a)(5). KCS must coordinate with other public agencies as needed to ensure that children with disabilities receive the education to which they are entitled under the IDEA. See 20 U.S.C. § 1412(12).
38. More specifically, KCS must provide a FAPE according to the “markedly more demanding” standard clarified by the United States Supreme Court in Endrew F., which explicitly demands that every child with a disability receive an “ambitious” education with the chance to meet “challenging objectives.” 137 S. Ct. at 1000. For most children, this standard means receiving instruction and services in the general education classroom with students without disabilities. Id. at 995.
39. Schools must provide positive behavior supports and other interventions, including FBAs and BIPs, when needed to provide a FAPE to children with disabilities whose behavior impedes their learning or that of other students. 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. §§ 300.324(a)(2)(i), (b)(2); 300.320(a)(4); WV Policy 2419. An FBA is a systematic assessment of a child’s behavior used to identify antecedent conditions to and the purpose of behaviors of concern. See WV Policy 2419, Glossary. Put simply, an FBA is a data collection process to analyze why a child behaves in a particular manner so that school staff can develop supports that address the behaviors. An FBA is “a sequential, multi-step team evaluation process that helps to determine the purpose and effect of the problem behavior(s) so that IEP goals and objectives can be identified and interventions and modifications can be developed and implemented, specifically through a student’s Behavior Intervention Plan. An FBA requires that both school personnel and
11

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 12 of 32 PageID #: 12
the parents evaluate the behaviors of concern within the broader perspective of the student’s home and school environments.” WV Policy 2419, Glossary (emphasis added). A BIP is a data-driven plan that describes the interventions school staff will use to support the student’s behavior, which should address the root causes of the concerning behaviors analyzed in the FBA. See id. When a series of disciplinary removals from the classroom constitute a change in a child’s placement, the school must conduct an FBA and develop or modify a BIP to address the child’s behavior. 34 C.F.R. § 300.530(d)(1), (f)(1);5 see also WV Policy 2419, 126 CSR 16. B. Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act
40. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibits discrimination on the basis of disability by recipients of federal financial assistance.
41. Section 504 also requires covered entities to provide children with disabilities a FAPE. FAPE under Section 504 requires special education and related services designed to meet the needs of children with disabilities as adequately as the needs of children who do not have disabilities. See 34 C.F.R. § 104.33(a), (b)(1). This requirement is similar to the IDEA requirement to provide a FAPE, but, “unlike FAPE under the IDEA, FAPE under [Section] 504 is defined to require a comparison between the manner in which the needs of disabled and non-disabled children are met, and focuses on the ‘design’ of a child’s educational program.” Mark H. v. Lemahieu, 513 F.3d
5 A pattern of repeated incidents of child misbehavior and classroom disruption, as well as violations of a code of student conduct resulting in disciplinary removals from school, may indicate that a child should receive behavior supports. See U.S. Dep’t of Education, Office of Special Educ. & Rehab. Servs., Dear Colleague Letter on Positive Behavioral Interventions and Supports in Individualized Education Programs (IEPs) 4 (Aug. 1, 2016). If the child already has behavior supports, on repeated incidents of misbehavior the school must consider whether the child’s behavior supports should be changed. Id.
12

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 13 of 32 PageID #: 13
922, 933 (9th Cir. 2008). Nonetheless, implementation of an IEP developed in accordance with the IDEA is one means of meeting Section 504’s requirement. See 34 C.F.R. § 104.33(b)(2).
42. Title II of the ADA prohibits discrimination on the basis of disability by state and local government agencies, including public school districts. 42 U.S.C. § 12132; see 28 C.F.R. § 35.130.
43. Under Title II of the ADA, public schools must provide students with disabilities with opportunities to participate in school services, programs, and activities that are equal to those provided to students without disabilities. 28 C.F.R. § 35.130(b)(1)(ii), (iii).
44. Both the ADA and Section 504 prohibit states and local governments, including public school districts, from discriminating when providing educational services, programs, and activities to children with disabilities. See 28 C.F.R. § 35.130(b)(1); 34 C.F.R. § 104.4(b)(1). Further, public schools may not provide educational services or administer their educational programs in a way that results in, aids, or perpetuates discrimination against children with disabilities. See 28 C.F.R. § 35.130(b)(1)(v), (b)(3); 34 C.F.R. § 104.4(b)(1)(v), (b)(4).
45. Both Section 504 and Title II of the ADA require public school districts to provide aids, benefits, and services to students with disabilities in the most integrated setting appropriate to the student’s needs, which is defined as a setting that enables individuals with disabilities to interact with persons without disabilities to the fullest extent possible. 34 C.F.R. § 104.4(b)(2); 28 C.F.R. § 35.130(d); 28 C.F.R. pt. 35, App. A, p. 450.
46. The Supreme Court has held that Title II of the ADA prohibits the needless isolation or segregation of persons with disabilities. Olmstead v. L.C., 527 U.S. 581, 600 (1999) (holding that “unjustified institutional isolation of persons with disabilities is a form of discrimination”). As the Supreme Court found, separating individuals with disabilities from their peers without disabilities “perpetuates unwarranted assumptions that persons so isolated are incapable or
13

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 14 of 32 PageID #: 14
unworthy of participating in community life,” and “severely diminishes life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 600-601. Unjustifiable disciplinary removals of students with disabilities from classrooms where they are educated alongside peers without disabilities violates this prohibition on unnecessary segregation.
STATEMENT OF FACTS A. KCS Fails to Provide its Students with Disabilities with Effective Behavior Supports,
Including FBAs and BIPs 47. KCS frequently removes students with disabilities who need behavior supports from the classroom for disciplinary reasons based on their behaviors. Such removals manifest in a variety of ways. Informal removals sometimes occur when KCS sends a student home from early school by calling a student’s parents and asking them to pick up the student from school before the end of the school day or to keep the student at home. KCS does not record these informal removals as disciplinary incidents in the West Virginia Education Information System (“WVEIS”) and therefore they are not included in the data that KCS is required to maintain. The school may also formally suspend or expel the student for disciplinary reasons. KCS also regularly removes students with disabilities who require behavior supports from their mainstream, general education classrooms and instead places them in behavior disorder classrooms for only students with disabilities, often after imposing informal or formal disciplinary removals from school. 48. These disciplinary removals often occur because KCS is failing to provide its students with effective behavior supports and interventions, including FBAs, BIPs, and other positive behavior supports such as behavior coaching, case management and individual care coordination, and self-regulation or social skills training.
14

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 15 of 32 PageID #: 15
49. The widespread nature of this problem is reflected across the KCS school district. As indicated above, rates of disciplinary removals of students with disabilities is consistently high across schools within KCS.
50. Despite notice that it is unlawfully failing to provide its students with effective behavior supports across the district, KCS has not changed its practices. Instead, it has continued to remove students for their behaviors rather than developing and implementing effective behavior supports that would allow these students to succeed in general education classrooms. Because of KCS’s actions and inactions, students with disabilities are at substantial and imminent risk of removal from schools throughout KCS.
51. These unnecessary removals cause students with disabilities to fall behind their peers without disabilities behaviorally and academically, and place them at greater risk of dropping out of school, failing to graduate with a diploma, or becoming involved with law enforcement and the courts. These effects can harm these students for years and derail their future opportunities both at school and in adult life.
52. As a result, KCS has deprived G.T. and the Plaintiff class of the education to which they are entitled. B. Plaintiff G.T.
53. G.T. is a nine-year-old boy in the third grade who receives special education and related services under the IDEA. He has been diagnosed with autism and ADHD. KCS has failed to provide him with needed behavior supports. KCS has also subjected him to multiple out-of-school suspensions and other disciplinary measures as a result of behaviors.
54. G.T. has many strengths that should help him succeed in school. G.T. has a strong reading ability, a deep appreciation for history, and an expansive vocabulary that is advanced for
15

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 16 of 32 PageID #: 16
a child his age. Additionally, G.T. has a strong aptitude for and interest in mathematics. His math skills are more advanced than the material and instruction he receives in his special education classroom.
55. In addition to academic strengths, G.T. has good social skills. G.T. follows directions well and does what he is asked to do. G.T. also gets along well with his classmates and plays well with his siblings.
56. G.T. is a young child with autism, and he faces challenges as a result of his disability. He becomes anxious when he is overwhelmed or placed in unfamiliar situations. At times, G.T. becomes upset by external factors, which then leads to a physical outburst.
57. G.T. requires specially designed instruction and related services to make progress in the general education curriculum. G.T.’s disabilities cause him to engage in challenging behaviors at times. It is because of G.T.’s challenging behaviors that he needs effective behavior supports to be successful.
58. When G.T. started first grade, G.T.’s parents informed KCS that G.T. had meltdowns, extreme fear, and negative reactions to both flies and bees. G.T. displayed behaviors at school that interfered with his education, but the causes were not always clear.
59. Despite this recognition of his behavior challenges, KCS did not conduct an FBA, did not create a BIP, and did not provide other behavior supports. Instead, KCS placed G.T. in a selfcontained intellectual disability classroom for over 90% of his day. KCS provided G.T. with an IEP at the start of his first grade year that did not set ambitious goals for him, but merely highlighted G.T.’s deficits and inability to complete work at grade level.
60. G.T.’s mother expressed her concerns about G.T. being placed in a self-contained classroom at his IEP meeting. G.T.’s special education teacher shared that, like G.T.’s parents,
16

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 17 of 32 PageID #: 17
she also did not believe that the self-contained classroom was the appropriate placement for G.T. Rather, she believed G.T. could excel in general education with supports. Nevertheless, KCS placed G.T. in the self-contained classroom throughout his first grade year.
61. KCS did not document G.T.’s progress during first grade, nor did it provide a rationale for maintaining G.T. in a segregated placement in second grade.
62. Nevertheless, at the start of second grade, G.T. remained in a segregated, self-contained classroom for students with an intellectual disability.
63. In September 2018, KCS moved G.T. into a general education classroom for approximately three-quarters of each day. Although KCS increased G.T.’s time in the general education setting, it did not provide G.T. with the behavior and academic supports necessary to enable him to succeed in that setting. As a result, the academic material provided to G.T. was not tailored to engage G.T. or address his learning needs, and he continued to have meltdowns in the classroom.
64. That fall, G.T.’s teachers sent him to the principal’s office numerous times for being disruptive in the classroom.
65. For example, G.T. received one-day out-of-school suspensions on both October 1 and October 3, 2018. These suspensions resulted from G.T. becoming overwhelmed and having physical outbursts. On October 1, G.T. was upset about losing a “Dojo point,”6 and on October 3, he was frustrated because he was not allowed to shop at the book fair with other students. KCS had not provided G.T. with any behavior supports or a BIP at the time of these incidents.
6 G.T.’s teacher used the Dojo system to track students’ behavior in the classroom. Students earned points for good behavior and lost points for negative behaviors. Students were told when they lost Dojo points.
17

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 18 of 32 PageID #: 18
66. After these two suspensions, a school psychologist drafted what KCS referred to as a BIP without first conducting an FBA or obtaining input from G.T.’s parents. As explained above, a BIP should be written based on a student’s FBA, and the FBA should include information provided by the student’s parents.
67. Instead, KCS directed G.T.’s classroom teacher to take notes on G.T.’s behavior and share them with the psychologist, who would then enter the information into her records. There is no indication that any of this information was used to determine the purpose and effect of G.T.’s behavior or develop any sort of behavior plan to help G.T. learn how to regulate his emotions and behaviors when he becomes overwhelmed. It is unclear what the information recorded by G.T.’s teacher was used for, if at all.
68. On November 13, 2018, the school again suspended G.T. for one day. School staff stated that G.T. “refused to do any work” but did not indicate any reason why he was unwilling to work. Rather, his teacher sent him to the office twice because he was upset and agitated. Office staff called G.T.’s father and asked him to pick up G.T. early from school.
69. On November 15, 2018, KCS placed G.T. in an in-school suspension after he became upset and acted out in physical education class. The incident summary drafted by KCS notes G.T. “sobbing” or “crying” several times throughout. There is no indication that KCS took this opportunity to try to understand what prompted G.T.’s behavior.
70. On November 29, 2018, G.T. was suspended for three days following an incident after he took candy from his teacher’s desk.
71. Finally, after suspending G.T. five times that semester, KCS held an IEP meeting on December 10, 2018. The only service added to G.T.’s IEP at that meeting was thirty minutes of “autism services” per month. G.T.’s parents expressed concerns that setting aside only thirty
18

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 19 of 32 PageID #: 19
minutes per month to meet with an “autism teacher” would not meaningfully benefit G.T. However, no additional services or time were provided to support G.T. No behavior services or supports were provided to G.T., and KCS did not seek G.T.’s parents’ consent to conduct an FBA to determine the causes of G.T.’s challenging behaviors. In addition, KCS did not provide any training to G.T.’s general education teacher on how to respond to her students with disabilities whose behavior impede their learning. Nor was she provided training on implementing a BIP for G.T. with fidelity.
72. On December 11, 2018, G.T. became upset because he did not have money to spend at a holiday event at Bridgeview called “Santa’s Workshop.” School staff called G.T.’s father who brought money to the school. G.T. was in the office when his father arrived. G.T. was upset and wanted to go home, but his father told him he needed to stay at school. When G.T.’s father got up to leave, G.T. ran out of the building. After his father called to him and told him that he could not run away, G.T. stopped, began to cry, and told his father that he was sorry.
73. As a result of this incident, KCS suspended G.T. for ten days, stating that the suspension was for “aggressive behaviors.” According to KCS records, Bridgeview staff considered expelling G.T. for this incident.
74. As required by law, KCS held another IEP meeting with G.T.’s parents on December 17, 2018, and the team found that his behaviors were a manifestation of his disability. As required by the IDEA, KCS initiated an FBA to determine the causes for G.T.’s behaviors.
75. At that meeting, G.T.’s parents expressed their desire for G.T. to remain in general education, as they believed he could do well in that setting with appropriate support. Instead, despite having never attempted to implement appropriate supports in the general education classroom, KCS placed G.T. in a self-contained behavior disorder classroom, over his parents’
19

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 20 of 32 PageID #: 20
objection. KCS made this change in placement before it completed the FBA and before it created a BIP.
76. G.T.’s December 17, 2018 IEP removed him from the general education environment for academics and placed him for the majority of the day in classrooms solely with other students with disabilities. KCS offered no opportunities to integrate G.T. with his peers for certain subject matters, part of the day, or for small lessons. Instead, his academic instruction in the self-contained classroom is wholly segregated from his mainstream peers.
77. Following G.T.’s December 17, 2018 IEP, school staff told G.T.’s parents it would conduct an FBA and revisit his placement, but, to date, KCS has not revisited G.T.’s placement.
78. KCS did not begin collecting data for an FBA until January of 2019. 79. Now in third-grade, G.T. has remained in the behavior disorder classroom for the 20192020 school year. During the due process hearing, KCS’s autism programming consultant Dr. Jim Ball testified, “to successfully integrate Student back into a regular education classroom would require determining the exact triggers that caused Student to be unsuccessful behaviorally in his second grade regular education classroom. Once those triggers are determined and accommodated, Student should begin spending increasing amounts of time in the regular education classroom.” J.T. & M.T., Due Process Decision ¶ 42. KCS has not followed its consultant’s advice to determine the triggers causing G.T. to be unsuccessful in his second grade classroom. After over a year in a self-contained classroom, KCS has made no attempts to reintegrate G.T. into his general education classroom, even on a small scale. 80. G.T. is not receiving effective behavior supports in his self-contained classroom. In order to receive effective behavior supports, G.T. needs to be taught strategies, including replacement behaviors for behaviors of concern, that would meet his needs and help him behave
20

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 21 of 32 PageID #: 21
appropriately in a general education environment. Instead, he is flatly told to “control” his behaviors. He receives no positive reinforcement when he behaves appropriately, but instead only receives negative feedback when he does something wrong, which includes being yelled at and forced to take personal time-outs in a small corner of the classroom. On a daily basis, he lacks positive role models that could help demonstrate to him how to improve his behavior in the classroom, as everyone in the behavior disorder classroom shares similar challenges.
81. The goals set by KCS for G.T. are the same year after year. Academic and behavioral goals in G.T.’s current IEPs are identical to those of his past IEPs. For example, one of G.T.’s math goals in his 2018 IEP was copied verbatim from his 2017 IEP. The date was not even updated, so that the September 5, 2018 IEP erroneously contained a math goal G.T. was to achieve by August 2018. Copying goals from one year to the next indicates that G.T.’s IEPs are not designed to produce progress. See Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017).
82. KCS conducted an FBA of G.T.’s behaviors in January 2019, but the assessment was wholly inadequate. An adequate FBA requires that both school personnel and the student’s parents evaluate the student’s behaviors of concern across environments, as defined in WV Policy 2419, 126 C.S.R. 16. KCS did not collect information from G.T.’s parents about his behavior at home. Additionally, the FBA does not target G.T.’s most significant behaviors interfering with his education, nor does it analyze them to provide hypotheses about why G.T. engages in the target behaviors. As such, it does not provide a basis for developing effective behavior interventions to address the target behaviors.
83. The few recommendations contained in the FBA are not adequately specific to G.T., and / or are not being implemented in his classroom. For example, the FBA recommends that he
21

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 22 of 32 PageID #: 22
use a visual schedule to help him prepare for transitions between activities; however, G.T.’s visual schedule is often nowhere in sight.
84. In addition, staff in the self-contained classroom do not effectively engage G.T. in instruction, which contributes to his negative behavior. Students in G.T.’s classroom spend much of the school day looking at iPads without direct instruction or other support from the teacher or aides. The teacher occasionally calls G.T. and other students to her desk, but only to show them their grades. G.T may review material he already knows, but he is not learning new curriculum and is falling behind his same-grade peers. Additionally, students, including G.T., frequently lie on the floor due to a lack of chairs in the classroom.
85. Even during the few periods each week when G.T. has the opportunity to spend time with his classmates without disabilities, he is often marginalized. During music class with peers without disabilities, G.T. has been told to sit off to the side with a paraprofessional aide. G.T. is not allowed, like the other music students, to participate in dance activities or drum circle, or be with the rest of the class for other class-wide activities.
86. G.T. has significant strengths and is capable of succeeding in general education settings in his school, but KCS is not providing him with the effective behavior supports he needs to be successful.
87. Because of his strengths in math, history, vocabulary, and reading, as well as his agreeable nature and willingness to interact with others, G.T. can succeed in general education. Effective behavior supports for G.T. should be designed to help him succeed in a general education classroom.
88. Consistent with their legal obligations, schools across the country regularly support students with much more significant needs than G.T.’s in general education classrooms every
22

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 23 of 32 PageID #: 23
single day. Rather than using strategies that have been proven effective to help G.T. meet challenging educational goals, KCS removes G.T. from his classroom and does not provide G.T. with effective behavior supports he needs to help him achieve ambitious goals and challenging objectives, as required by law. See Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017). With effective supports, G.T. is capable of succeeding in a general education setting. C. The Plaintiff Class
89. G.T.’s experience at KCS is shared by other KCS students who need behavior supports and experience disciplinary removals from any classroom. These students experience the same injuries and require the same relief as G.T.
90. KCS is required to incorporate and implement a preventive discipline program that takes behavior into account for students with disabilities. W. Va. Code § 18A-5-1 (2019). To comply with this directive, IEP teams must consider whether a student’s behavior impedes his or her learning and, if it does, must consider the use of behavior supports and interventions to address the behavior. 20 U.S.C. § 1414(d)(3)(B)(i); W. Va. Code § 18A-5-1. If a student with an IEP is subject to disciplinary action, the IEP team must evaluate the supports in place for the student and revise the plan as needed, including through the development or revision of FBAs and BIPs. See, e.g., 20 U.S.C. § 1400 et seq.; W. Va. Code § 18A-5-1.
91. Rather than adhere to its own policies and procedures, as well as federal and state law, KCS does not appropriately address students’ behaviors that are caused by their disabilities and instead removes them from the general education classroom.
92. First, KCS fails to adequately analyze the root causes of students’ concerning behaviors, and therefore fails to create effective IEPs or BIPs for them. Staff perform FBAs or develop BIPs without consulting behavior analysts or others with expertise who could help them
23

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 24 of 32 PageID #: 24
understand how to analyze student behavior. As a result, students are provided with ineffective behavior supports that do not address the behaviors associated with the student’s disability.
93. Even when students have BIPs that on paper contain appropriate behavior interventions, KCS fails to ensure that such plans are effectively implemented. KCS fails to train general education teachers to adequately respond to children with disabilities whose behaviors impede their learning by implementing their BIPs with fidelity. KCS also fails to provide adequate opportunities for its teachers to consult with behavior specialists or others with expertise about how to implement BIPs, including when BIPs do not adequately prevent or ameliorate concerning student behavior and must be revised.
94. KCS routinely removes students with disabilities from the classroom for their behaviors due to its failure to adequately evaluate students with disabilities, or effectively implement behavior plans and other interventions. Such removal takes place in a variety of ways: this includes undocumented “send homes” or “keep homes,” suspensions, and even expulsions. As stated above, during the 2018-2019 school year, the West Virginia Department of Education reported that KCS had a total of 4,312 students with an IEP. KCS removed these students with IEPs from the classroom at least 1,611 times: including at least 193 one-day out-of-school suspensions, 412 one-day in-school suspensions, 595 out-of-school suspensions lasting between one and ten days, 248 in-school suspensions lasting between one and ten days, 93 out-of-school suspensions lasting ten days, and 70 out-of-school suspensions lasting longer than ten days. The total number of removals increased by at least 234 incidents from the number reported for the 2017-2018 school year.
95. The IDEA requires states to collect and annually report data on its progress toward meeting targets with regard to the provision of special education. 20 U.S.C.A. § 1453(d). KCS
24

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 25 of 32 PageID #: 25
submits data to the West Virginia Department of Education annually and therefore knew or should have known the rates at which it suspends and expels students with IEPs.
96. Because KCS disciplines its students with disabilities instead of providing effective behavior supports, these students are stigmatized and isolated, thereby leaving them vulnerable to bullying or rejection by their peers. The emotional trauma associated with being unwelcome and excluded from school compounds the difficulty children already face upon return or reintegration into the general education classroom—if they are actually reintegrated. Further, they are more likely to be placed in residential facilities or other forms of institutionalization, including the delinquency system. Discipline for KCS students with disabilities is more likely to take the form of a referral to law enforcement than for other students, and juvenile courts may use documented suspensions against the student in truancy proceedings, which makes it more likely that they will be taken out of their homes. See In re Brandi B., 231 W.Va. 71, 743 S.E.2d 882 (W. Va. 2013) (holding that “adjudicating a juvenile a status offender on the basis of absences occasioned by disciplinary suspension is rationally related to the Legislative purpose”).
97. Defendants have had ample notice of their systemic failure to provide effective behavior supports to students with disabilities who then experience disciplinary removals from the classroom. Local advocacy groups, including Plaintiffs’ counsel, have received numerous complaints about KCS’s failures to provide behavior supports to its students with disabilities, and have advocated on behalf of individual KCS students for years. Plaintiffs’ counsel also contacted KCS officials directly in advance of filing this Complaint to raise again their systemic concerns. Despite this notice, however, KCS has not changed its policies, practices, and procedures for educating students with disabilities so that they comply with federal and state law.
CAUSES OF ACTION
25

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 26 of 32 PageID #: 26
Count I Violations of Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.
98. Plaintiffs reallege and incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
99. G.T. and each member of the Plaintiff class is a child with a disability who is eligible for special education and related services under the IDEA. See 20 U.S.C. §§ 1401, 1412. Plaintiff The Arc WV’s members include the mother of, and other advocates for, G.T. and other members of the Plaintiff class.
100. Defendant KCS, as the LEA, is responsible for the provision of FAPE in the LRE to all eligible students. See 20 U.S.C. §§ 1401(32), 1412(a)(1), 1412(a)(5).
101. By the acts and omissions alleged herein, KCS has violated the rights of G.T. and the Plaintiff class under the IDEA, 20 U.S.C. § 1400 et seq., and its implementing regulations by:
a. failing to have in effect policies and procedures to ensure KCS provides a FAPE to all eligible children in the district, 20 U.S.C. § 1412(a)(1); 34 C.F.R. § 300.101, including those students with disabilities who need behavior supports to receive a FAPE;
b. failing to effectively monitor implementation of and to enforce the IDEA’s requirements regarding the provision of FAPE in the LRE, 20 U.S.C. § 1416(a)(1)(C), (a)(3); 34 C.F.R.§ 300.600. Count II
Violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 102. Plaintiffs reallege and incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
26

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 27 of 32 PageID #: 27
103. G.T. and each member of the Plaintiff class is an “otherwise qualified individual with a disability” within the meaning of Section 504. 29 U.S.C. §§ 794, 705(20). Their disabilities substantially limit one or more major life activities, including but not limited to learning, reading, concentrating, thinking, and communicating. 42 U.S.C. § 12102(2)(A). As school-age children who live in Kanawha County, G.T. and each member of the Plaintiff class is qualified to participate in KCS’s educational programs and services. 34 C.F.R. § 104.3(l)(2).
104. Defendant KCS is a recipient of federal financial assistance subject to Section 504. 29 U.S.C. § 794(b)(2)(B).
105. By the acts and omissions alleged herein, KCS has discriminated against G.T. and the Plaintiff class in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. §794, and its implementing regulations by, solely on the basis of disability:
a. excluding G.T. and the Plaintiff class from participation in, and denying them the benefits of, placement in the LRE, and otherwise discriminating against them, 34 C.F.R. § 104.4(a);
b. failing to provide them with a FAPE, including special education and related aids and services that are designed to meet their needs as adequately as the needs of children without disabilities are met and that adhere to the procedural safeguards set forth in Section 504, § 104.33;
c. denying them an educational opportunity that is equal to the opportunity afforded other children, § 104.4(b)(1)(ii);
d. denying them educational services that are as effective as the services provided to other children, § 104.4(b)(1)(iii);
27

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 28 of 32 PageID #: 28
e. unnecessarily providing them different or separate educational services, § 104.4 (b)(1)(iv);
f. aiding or perpetuating discrimination against them by providing significant assistance to schools that discriminate against these children on the basis of disability, § 104.4(b)(1)(v);
g. utilizing methods of administration that have the effect of subjecting them to discrimination on the basis of disability, have the effect of substantially impairing accomplishment of its objectives for students with disabilities, and perpetuate the discrimination of local schools against these children, § 104.4(b)(4);
h. failing to serve them alongside their peers without disabilities in academic and nonacademic settings to the maximum extent appropriate, § 104.34; and
i. denying them an equal opportunity to participate in non-academic and extracurricular services and activities, § 104.37.
106. The relief sought by Plaintiffs and the Plaintiff class would not require a fundamental alteration to KCS’s programs, services, or activities.
Count III Violations of the Americans with Disabilities Act, 42 U.S.C § 12131 et seq. 107. Plaintiffs reallege and incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 108. G.T. and each member of the Plaintiff class is an “individual with a disability” within the meaning of the ADA. Their disabilities substantially limit one or more major life activities, including but not limited to, learning, reading, concentrating, thinking, and communicating. 42 U.S.C. § 12102.
28

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 29 of 32 PageID #: 29
109. As school-age children who live in Kanawha County, G.T. and each member of the Plaintiff class is qualified to participate in KCS’s educational programs and services. See 42 U.S.C. § 12131(2).
110. Defendant KCS is a public entity subject to Title II of the ADA. 111. By the acts and omissions alleged herein, KCS has discriminated against G.T. and the Plaintiff class in violation of Title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations by, on the basis of disability:
a. excluding G.T. and the Plaintiff class from participation in, and denying them the benefits of, a full school day, and otherwise discriminating against them, 28 C.F.R. § 35.130(a);
b. denying them an educational opportunity that is equal to the opportunity afforded other children, § 35.130(b)(1)(ii);
c. denying them educational services that are as effective as the services provided to other children, § 35.130(b)(1)(iii);
d. unnecessarily providing them different or separate educational services, § 35.130(b)(1)(iv);
e. aiding or perpetuating discrimination against them by providing significant assistance to local school districts that discriminate against these children on the basis of disability, § 35.130(b)(1)(v);
f. utilizing methods of administration that have the effect of subjecting them to discrimination on the basis of disability, have the effect of substantially impairing accomplishment of its objectives for students with disabilities, and perpetuate the discrimination of local school districts against these children, § 35.130(b)(3);
29

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 30 of 32 PageID #: 30
g. failing to reasonably modify their policies, practices, or procedures as needed to avoid discrimination on the basis of disability, § 35.130(b)(7); and
h. failing to provide them educational services, programs, and activities in the most integrated setting appropriate to their needs, § 35.130(d).
i. failing to ensure that its schools do not unnecessarily segregate children with disabilities from their typical peers. See Olmstead v. L.C., 527 U.S. 581 (1999).
112. The relief sought by Plaintiffs and the Plaintiff class would not require a fundamental alteration to KCS’s programs, services, or activities.
Count IV Violations of the West Virginia Human Rights Act, W. Va. § 5-11-1 et seq. 113. The West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. prohibits discrimination in public accommodations against individuals with disabilities. 114. KCS is a public accommodation under the HRA. 115. G.T. is an individual with a disability within the meaning of the HRA, because his learning is substantially impacted by his mental impairment. 116. KCS has discriminated against G.T. by denying him an appropriate education, by segregating him from other children of his age, and denying him the accommodations necessary for him to remain in a general education classroom.
REQUEST FOR RELIEF Plaintiff G.T., on behalf of himself and all other persons similarly situated, and The Arc WV request this Court grant the following relief: A. Certification of this action, as a class action, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, consisting of:
30

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 31 of 32 PageID #: 31
All Kanawha County Schools students with disabilities who (1) need but are not receiving behavior supports from KCS, and (2) have experienced disciplinary removals from any classroom. B. A declaratory judgment that KCS has violated the IDEA, Section 504, the ADA, and West Virginia law by failing to provide effective behavior supports to eligible Kanawha County school children and instead subjecting them to unjustified disciplinary removals from school. C. A preliminary and permanent injunction ordering KCS to revise its policies, practices, and procedures as necessary to provide effective behavior supports to its students with disabilities, and take other appropriate affirmative actions to ensure that violations of law complained of above do not continue to be engaged in by KCS, their agents, successors, employees, attorneys, and those acting at their direction. D. An order appointing an independent monitor or ombudsman whose duties shall include, but not be limited to:
1. Periodic, in-person monitoring of KCS’s implementation of and compliance with the Court’s Order;
2. Proposing remedies necessary to bring about full compliance with the Court’s order; and
3. Regular reports to the Court and Plaintiff’s counsel regarding the same. E. An award of reasonable attorney’s fees and costs; and F. Such other relief as may be deemed proper by the Court.
31

Case 2:20-cv-00057 Document 1 Filed 01/24/20 Page 32 of 32 PageID #: 32
Respectfully submitted,
_T__-_Z_E_JB__$__.__JM_O_F_T_________________ Lydia C. Milnes (WV Bar ID No. 10598) Blaire L. Malkin (WV Bar ID No. 10671) Mountain State Justice, Inc. 1217 Quarrier St. Charleston, WV 25301
Erin Snyder (WV Bar ID No. 12596) Lori Waller (WV Bar ID No. 11303) Disability Rights West Virginia 1207 Quarrier Street, Ste 400 Charleston, WV 25301-1845
Michael Faris (IL Bar ID No. 6204179)* Karen Klass (IL Bar ID No. 6327168)* Latham & Watkins LLP 330 N. Wabash Ave., Suite 2800 Chicago, IL 60611
Ira A. Burnim (DC Bar No. 406154)* Lewis Bossing (DC Bar No. 984609)* Judge David L. Bazelon Center for Mental Health Law 1101 15th Street NW, Suite 1212 Washington, DC 20005
Shira Wakschlag (DC Bar No. 1025737)* The Arc of the United States 1825 K Street NW, Suite 1200 Washington, DC 20006
Attorneys for Petitioner *Statement of Visiting Attorney Forthcoming
32

 
 Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 1 of 44 PageID #: 128

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

G.T., by his Parents Michelle and Jamie T., K.M., by his Parents Danielle and Steven M.,
on behalf of themselves and all similarly situated individuals, and The Arc of West Virginia,

Plaintiffs,

v.

Civ. Act. No. 2:20-cv-00057

Judge Irene C. Berger

THE BOARD OF EDUCATION OF THE COUNTY OF KANAWHA, and RON DUERRING, Superintendent, The Board of Education of the County of Kanawha, in his official capacity,

Defendants.

_________________________________________/

FIRST AMENDED CLASS ACTION COMPLAINT

INTRODUCTION

1. Defendant the Board of Education of the County of Kanawha (the “BOE”) unlawfully

fails to provide effective behavior supports for a class of its students with disabilities, leading to

unjustified disciplinary removals from the classroom due to the students’ behaviors. The BOE

punishes students for their behaviors and removes them from the classroom instead of developing

and implementing effective behavior supports—required by law—that would allow these students

to succeed in general education settings alongside their peers without disabilities.

2. Plaintiff G.T. is a third-grade student enrolled in Kanawha County Schools (“KCS”)

and is diagnosed with autism and attention deficit hyperactivity disorder (“ADHD”).

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 2 of 44 PageID #: 129
3. Plaintiff K.M. is a fourth-grade KCS student diagnosed with multiple disabilities including Down syndrome and ADHD.
4. Both G.T. and K.M. have significant strengths and could be educated successfully in a general education classroom, with effective behavior supports. However, both G.T. and K.M. have been denied effective behavior supports at their KCS public schools and, as a result, have experienced disciplinary removals from school. Because of the BOE’s failures to provide G.T. and K.M. with effective behavior supports, and subsequent removals of G.T. and K.M. from their respective classrooms, neither student is making appropriate educational progress.
5. Plaintiffs G.T.’s and K.M.’s situations are representative of many students with behavior support needs within KCS. The BOE fails to provide students with disabilities the instruction and services, including behavior supports, they need to succeed in school. Instead, students like K.M. are told by their schools that they “do[] not belong here.” As a result, these students drop out at a high rate and experience repeated yet avoidable disciplinary sanctions, including in-school and out-of-school suspensions, undocumented “send homes,” and expulsions. Older children may be placed in alternative schools, or referred to law enforcement. Many students with behavior support needs are pushed into segregated classrooms where they interact only with other students with disabilities, and where there is inadequate (and sometimes no) instruction and inappropriate and ineffective efforts at behavior management.
6. Plaintiffs G.T. and K.M., on behalf of themselves and others similarly situated, and The Arc of West Virginia bring this class action complaint for declaratory, injunctive, and compensatory relief to challenge the BOE’s systemic policies, practices, and procedures that violate federal and state law.
2

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 3 of 44 PageID #: 130
7. The BOE’s actions violate the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq., Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794(a), Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., the West Virginia Human Rights Act (“HRA”), W. Va. Code § 5-11-9 et seq., and West Virginia Policy 2419 (“WV Policy 2419”).
8. The IDEA requires public schools to provide all eligible children with disabilities a free appropriate public education (“FAPE”). 20 U.S.C. § 1412(a)(1). To meet their FAPE obligation, schools must provide “special education and related services.” 42 U.S.C. § 1401(9). The standard for providing a FAPE is a “demanding” one: students with disabilities must receive “appropriately ambitious” special education that gives them “the chance to meet challenging objectives.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017). This standard must be met by public schools in West Virginia, including schools within KCS. See R.F v. Cecil Cty. Pub. Sch., 919 F.3d 237 (4th Cir. 2019). See also W. Va. § 18-20-1; WV Policy 2419.
9. Section 504 and Title II of the ADA prohibit public entities, including public schools, from discriminating against students on the basis of their disabilities. 29 U.S.C. § 794; 42 U.S.C. § 12132 et seq. They require public schools to modify their policies, practices, and procedures as needed to avoid discrimination, including the stigma that accompanies unnecessary segregation, and to provide students with disabilities equal educational opportunities. Id.
10. Under federal law, for students whose behavior impedes learning, public education must include effective behavior supports. 20 U.S.C. § 1400(c)(5). These supports may include, but are not limited to, Functional Behavior Assessments (“FBAs”) of the student’s behaviors, Behavior Intervention Plans (“BIPs”) identifying interventions addressing those behaviors, and other positive behavior interventions and supports. With such supports, G.T., K.M., and the
3

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 4 of 44 PageID #: 131
Plaintiff class can learn, make progress, and realize bright futures in general education classrooms in KCS alongside their peers without disabilities. Without them, they are at high risk of doing poorly in school or dropping out, becoming involved in the delinquency or criminal justice systems, and being unable to obtain a job or live independently as they transition to adulthood.
11. The BOE has no functioning system for identifying children with disabilities who need behavior supports and providing effective supports to them. Instead, all too often it subjects them to formal (i.e., suspensions or expulsions) or informal (i.e., requests to parents to take or keep students home) removals from school and school activities for behaviors related to their disabilities. Had the students been provided the effective behavior supports to which they are entitled, it is likely that many of these disciplinary removals would not have been necessary.
12. Over the past several months, Plaintiffs G.T. and K.M. repeatedly raised concerns with the BOE regarding its failure to provide effective behavior supports to students with disabilities who need them to receive a FAPE and avoid discrimination. These concerns were raised through correspondence with the BOE as well as through formal due process complaints filed with the West Virginia Department of Education. However, the BOE has not acted to remedy the systemic and urgent failures that Plaintiffs have identified, leaving Plaintiffs with no recourse other than this action.
13. Plaintiffs seek injunctive and declaratory relief for ongoing violations of the IDEA, Section 504, the ADA, and West Virginia law, including an order that Defendants provide Plaintiffs G.T., K.M., and the Plaintiff class with the effective behavior supports they need to receive a FAPE and avoid discrimination, and enable them to be educated in general education classrooms with their peers.
4

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 5 of 44 PageID #: 132
PARTIES A. Plaintiffs
14. Plaintiff G.T., a minor, seeks to proceed using a pseudonym. G.T. brings this action by and through his parents, Michelle and Jamie T., as permitted by Federal Rule of Civil Procedure 17(c).
15. Plaintiff G.T. is a nine-year-old student with autism and ADHD attending third grade at Bridgeview Elementary School (“Bridgeview”) in KCS. He is a student with a disability who is eligible for special education under the IDEA and West Virginia law. He is also a qualified individual with a disability under Section 504 and the ADA. As a child with an impairment that substantially limits his ability to learn, G.T. is also an individual with a disability within the meaning of the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. G.T. has exhausted all administrative remedies available to him.
16. Plaintiff K.M., a minor, seeks to proceed using a pseudonym. K.M. brings this action by and through his parents, Danielle and Steven M., as permitted by Federal Rule of Civil Procedure 17(c).
17. Plaintiff K.M. is a nine-year-old student with Down syndrome and ADHD attending fourth grade at Alum Creek Elementary School (“Alum Creek”) in KCS. He is a student with a disability who is eligible for special education under the IDEA and West Virginia law. He is also a qualified individual with a disability under Section 504 and the ADA. As a child with an impairment that substantially limits his ability to learn, K.M. is also an individual with a disability within the meaning of the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. Further, K.M. has exhausted all administrative remedies available to him.
5

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 6 of 44 PageID #: 133
18. Plaintiff The Arc of West Virginia (“The Arc WV”) is a not-for-profit membership organization whose primary office is located in Parkersburg, West Virginia. The Arc WV is dedicated to promoting and protecting the rights of people with intellectual and developmental disabilities (“I/DD”), including autism, throughout the state. The Arc WV engages in public policy advocacy and develops programs to support people with I/DD to learn, live, and work in their communities. Supporting the rights of students with disabilities to receive the supports and services they need to make progress in their neighborhood schools alongside their peers without disabilities has been a priority of The Arc WV throughout its history. As The Arc WV’s position statement on education states: “All children and youth with…I/DD must receive a free appropriate public education that includes fair evaluation, ambitious goals, challenging objectives, the right to progress, individualized supports and services, high quality instruction, and access to the general education curriculum in age-appropriate inclusive settings.”1
19. The Arc WV serves people with I/DD statewide directly and through four affiliated member chapters throughout the state, including The Arc of the Three Rivers based in Kanawha County. The Arc WV has over 2,400 members throughout the state, including over 200 in Kanawha County. In 2019, The Arc WV provided assistance to 130 families state-wide who sought advice and advocacy regarding special education services. Thirteen of these families reside in Kanawha County with children attending KCS. The Arc of the Three Rivers serves 180 individuals annually, including more than twenty students who are eligible to attend KCS, seventeen of whom actually attend KCS. Plaintiff G.T. is a constituent and his mother is a member
1 Position Statement: Education, The Arc (2018), https://thearc.org/positionstatements/education/.
6

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 7 of 44 PageID #: 134
of both The Arc WV and The Arc of the Three Rivers. Plaintiff K.M. is a constituent and his parents are members of both The Arc WV and The Arc of the Three Rivers. B. Defendants
20. Defendant the BOE is the Local Education Agency (“LEA”) for Plaintiffs G.T. and K.M. and is responsible for providing a FAPE to both students and to the Plaintiff class. “The LEA . . . is responsible for the direct provision of services under IDEA, including the development of an individualized education program (“IEP”) for each disabled student, the expenditure of IDEA funds to establish programs in compliance with IDEA, and the maintenance of records and the supply of information to the SEA [State Educational Agency] as needed to enable the SEA to function effectively in its supervisory role under IDEA.” Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 943 (4th Cir. 1997). The BOE receives federal financial assistance and is a public entity as defined by Title II of the ADA.
21. Defendant Ron Duerring is the Superintendent of the BOE and is responsible for the daily operations of KCS, including its programs and services for students with disabilities. See W. Va. Code § 18-4-10. Defendant Duerring is sued solely in his official capacity for prospective, injunctive relief.
JURISDICTION AND VENUE 22. This Court has original jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. § 1331 because those claims arise under federal law, specifically the IDEA, Section 504, and the ADA. Declaratory and injunctive relief are available pursuant to 28 U.S.C. §§ 2201-02. This Court has supplemental jurisdiction over Plaintiffs’ state law claims, because Plaintiffs’ claims arise out of the same case or controversy as Plaintiffs’ federal claims. See 28 U.S.C. § 1367.
7

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 8 of 44 PageID #: 135
23. Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims herein occurred in this district and because all Defendants maintain offices in this district and are responsible for enforcing the laws relevant to this litigation in this district.
EXHAUSTION OF ADMINISTRATIVE REMEDIES A. G.T. 24. Plaintiff G.T. filed a Complaint and Request for Due Process Hearing with the West Virginia Department of Education’s Office of Federal Programs (“WV OFP”) on behalf of himself and a class of similarly situated students on June 5, 2019, seeking injunctive, declaratory, and compensatory relief. 25. In his due process complaint, G.T. alleged the BOE failed to provide him and class members with a FAPE, by failing to provide necessary behavior supports, as required by federal and state law, 20 U.S.C. § 1412(a), West Virginia Code § 18-20-1, and WV Policy 2419. The complaint also alleged violations of the ADA, 42 U.S.C. § 12132 and Section 504, 29 U.S.C. § 794. 26. A due process hearing was conducted on August 19, 20, and 21, 2019. 27. The WV OFP Hearing Officer (the “Hearing Officer”) dismissed the class allegations as well as the ADA and Section 504 claims from the complaint, finding that she lacked jurisdiction to consider such allegations. 28. The Hearing Officer further denied all individual relief sought by G.T. 29. Through this process, Plaintiff G.T. has exhausted the administrative remedies provided by the IDEA, 20 U.S.C. § 1400 et seq. This Court therefore has express appellate jurisdiction over the administrative ruling issued pursuant to the IDEA. Id. at § 1415(i)(2).
8

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 9 of 44 PageID #: 136
30. G.T., on his own behalf, appeals the decision of the Hearing Officer as to the denial of individual injunctive and compensatory relief.
B. K.M. 31. Plaintiff K.M. filed a Complaint and Request for Due Process Hearing with the WV OFP on behalf of himself and a class of similarly situated students on June 27, 2019, seeking injunctive, declaratory, and compensatory relief. 32. In his due process complaint, K.M. alleged the BOE failed to provide him and class members with a FAPE, by failing to provide necessary behavior supports, as required by federal and state law, 20 U.S.C. § 1412(a), West Virginia Code § 18-20-1, and WV Policy 2419. The complaint also alleged violations of the ADA, 42 U.S.C. § 12132, and Section 504, 29 U.S.C. § 794. 33. A due process hearing was conducted on October 28, 29, and 30, 2019. 34. The Hearing Officer dismissed the class allegations as well as the ADA and Section 504 claims from the complaint, finding that she lacked jurisdiction to consider such allegations. 35. The Hearing Officer found that K.M. and his parents met their burden of proof on certain issues, and granted limited individual relief sought by K.M. The Hearing Officer also found that K.M. and his parents failed to meet their burden of proof on certain issues, and denied such relief. 36. Through this process, Plaintiff K.M. has exhausted the administrative remedies provided by the IDEA, 20 U.S.C. § 1400 et seq. This Court therefore has express appellate jurisdiction over the administrative ruling issued pursuant to the IDEA. Id. at § 1415(i)(2). 37. K.M., on his own behalf, appeals the decision of the Hearing Officer as to the denial of certain portions of individual injunctive and compensatory relief.
9

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 10 of 44 PageID #: 137
C. The Plaintiff Class 38. The remainder of the class members do not need to exhaust their claims individually because such actions would be futile. It would be futile for the remainder of the class to exhaust their claims individually, because plaintiffs allege systemic violations and request systemic remedies to address the BOE’s failures. Alternatively, if this Court holds that exhaustion is required, plaintiffs have satisfied the exhaustion requirement.
CLASS ACTION ALLEGATIONS 39. Plaintiffs G.T. and K.M., on behalf of themselves and all other similarly situated individuals, bring this action pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2) on behalf of the following class: All Kanawha County Schools students with disabilities who need behavior supports and have experienced disciplinary removals from any classroom. 40. The Plaintiff class is so numerous that joinder of all members is impracticable. During the 2015-2016 school year, a total of 4,299 of the 27,044 children in KCS received special education under the IDEA. An additional 1,216 of KCS children with disabilities received services under Section 504 in this same year. Of the students who received special education, 2,086 have disabilities such as emotional disturbance, autism, other forms of I/DD, or other health impairments including ADHD. Of the more than 5,500 students with disabilities in KCS receiving services under the IDEA and Section 504, many require behavior supports to make progress in their education.2 41. According to the West Virginia Department of Education, during the 2015-2016 school year, the BOE subjected students served under the IDEA to 1,486 out-of-school suspensions. That
2 The 2015-2016 school year is the most recent school year for which the Civil Rights Data Collection has published data; however, Plaintiffs believe that the 2015-2016 school year is likely representative of the most recent school year.
10

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 11 of 44 PageID #: 138
same year, it subjected students served only under Section 504 to 411 out-of-school suspensions. The BOE has continued to suspend students with disabilities at a high rate. The most recent data indicates that the BOE’s use of disciplinary suspensions to punish students with disabilities has only increased: during the 2018-2019 school year, KCS had a total of 4,312 students with an IEP and subjected these students to at least 1,611 suspensions.3
42. There are questions of law and fact common to the claims of all class members, including (a) whether the BOE’s failure to provide effective behavior supports and resulting disciplinary removals of students with disabilities violates the IDEA and WV Policy 2419,4 and (b) whether the BOE’s failure to provide effective behavior supports and resulting disciplinary removals of students with disabilities violates Section 504, Title II of the ADA, and the HRA.
43. The claims of Plaintiffs G.T. and K.M. are typical of the claims of the class. Due to the BOE’s policies, practices, procedures, acts, and omissions in failing to provide effective behavior supports to its students, Plaintiffs G.T. and K.M. and the Plaintiff class are subjected to, or are at substantial risk of being subjected to, formal or informal disciplinary removals from school.
44. Plaintiffs G.T. and K.M. will fairly and adequately represent the interests of the class. Plaintiffs G.T. and K.M. possess strong personal interests in the subject matter of this lawsuit. Plaintiffs G.T. and K.M. are represented by experienced counsel with expertise in federal laws
3 Plaintiffs requested this information on November 4, 2019, via a Freedom of Information Act request to the West Virginia Department of Education and the BOE. Plaintiffs were informed by the West Virginia Department of Education that pursuant to West Virginia data release/reporting procedures, certain data were suppressed to protect student privacy. Plaintiffs did not receive a response from the BOE. 4 WV Policy 2419 follows the requirements of the IDEA and applies to school age students whose educational programs require special education and related services. Districts must adopt and implement appropriate special education policies and procedures to receive federal funds under the IDEA.
11

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 12 of 44 PageID #: 139
concerning disability rights and special education, as well as expertise in federal class action litigation. Counsel has the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action.
45. The BOE’s policies, practices, procedures, acts, and omissions harm all class members in the same manner. The BOE’s systematic failure to provide effective behavior supports and its subsequent disciplinary removals of students with disabilities from the classroom has deprived the Plaintiff class of the educational services to which they are entitled by federal law, subjected them to disability-based discrimination, including unnecessary segregation and resulting stigma, and increased their risk of being subjected to such harms in the future. Final injunctive and declaratory relief is thus appropriate for the Plaintiff class as a whole.
STATUTORY BACKGROUND A. The Individuals with Disabilities Education Act (“IDEA”)
46. In enacting the IDEA, Congress found that “[d]isability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” 20 U.S.C. § 1400(c)(1).
47. Under the IDEA, public schools must provide “special education” and “related services” to all children with disabilities aged three to twenty-one residing in the state. 42 U.S.C. § 1401(9). Special education and related services for each child are designed by a team, including parents, teachers, and the student (if appropriate), and documented in a written IEP. 42 U.S.C. § 1414(d)(1)(A), (B).
12

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 13 of 44 PageID #: 140
48. The IDEA further requires states to ensure that “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes . . . cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5).
49. Together, these requirements are commonly referred to as the school’s duty to provide students a FAPE in the least restrictive environment (“LRE”). As the LEA for Kanawha County, the BOE is responsible for ensuring that all eligible children with disabilities within the county receive a FAPE in the LRE. 20 U.S.C. §§ 1412(a)(11)(A), (a)(1), (a)(5). The BOE must coordinate with other public agencies as needed to ensure that children with disabilities receive the education to which they are entitled under the IDEA. See 20 U.S.C. § 1412(12).
50. More specifically, the BOE must provide a FAPE according to the “markedly more demanding” standard clarified by the United States Supreme Court in Endrew F., which explicitly demands that every child with a disability receive an “ambitious” education with the chance to meet “challenging objectives.” 137 S. Ct. at 1000. For most children, this standard means receiving instruction and services in the general education classroom with students without disabilities. Id. at 995.
51. Schools must provide positive behavior supports and other interventions, including FBAs and BIPs, when needed to provide a FAPE to children with disabilities whose behavior impedes their learning or that of other students. 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. §§ 300.324(a)(2)(i), (b)(2); 300.320(a)(4); WV Policy 2419. An FBA is a systematic assessment of a child’s behavior used to identify antecedent conditions to and the purpose of behaviors of concern. See WV Policy 2419, Glossary. Put simply, an FBA is a data collection process to
13

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 14 of 44 PageID #: 141
analyze why a child behaves in a particular manner so that school staff can develop supports that address the behaviors. An FBA is “a sequential, multi-step team evaluation process that helps to determine the purpose and effect of the problem behavior(s) so that IEP goals and objectives can be identified and interventions and modifications can be developed and implemented, specifically through a student’s Behavior Intervention Plan. An FBA requires that both school personnel and the parents evaluate the behaviors of concern within the broader perspective of the student’s home and school environments.” WV Policy 2419, Glossary (emphasis added). A BIP is a data-driven plan that describes the interventions school staff will use to support the student’s behavior, which should address the root causes of the concerning behaviors analyzed in the FBA. See id. When a series of disciplinary removals from the classroom constitute a change in a child’s placement, the school must conduct an FBA and develop or modify a BIP to address the child’s behavior. 34 C.F.R. § 300.530(d)(1), (f)(1);5 see also WV Policy 2419, 126 CSR 16. B. Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act
52. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibits discrimination on the basis of disability by recipients of federal financial assistance.
53. Section 504 also requires covered entities to provide children with disabilities a FAPE. FAPE under Section 504 requires special education and related services designed to meet the needs of children with disabilities as adequately as the needs of children who do not have disabilities.
5 A pattern of repeated incidents of child misbehavior and classroom disruption, as well as violations of a code of student conduct resulting in disciplinary removals from school, may indicate that a child should receive behavior supports. See U.S. Dep’t of Education, Office of Special Educ. & Rehab. Servs., Dear Colleague Letter on Positive Behavioral Interventions and Supports in Individualized Education Programs (IEPs) 4 (Aug. 1, 2016). If the child already has behavior supports, on repeated incidents of misbehavior the school must consider whether the child’s behavior supports should be changed. Id.
14

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 15 of 44 PageID #: 142
See 34 C.F.R. § 104.33(a), (b)(1). This requirement is similar to the IDEA requirement to provide a FAPE, but, “unlike FAPE under the IDEA, FAPE under [Section] 504 is defined to require a comparison between the manner in which the needs of disabled and non-disabled children are met, and focuses on the ‘design’ of a child’s educational program.” Mark H. v. Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008). Nonetheless, implementation of an IEP developed in accordance with the IDEA is one means of meeting Section 504’s requirement. See 34 C.F.R. § 104.33(b)(2).
54. Title II of the ADA prohibits discrimination on the basis of disability by state and local government agencies, including LEAs. 42 U.S.C. § 12132; see 28 C.F.R. § 35.130.
55. Under Title II of the ADA, LEAs must provide students with disabilities with opportunities to participate in school services, programs, and activities that are equal to those provided to students without disabilities. 28 C.F.R. § 35.130(b)(1)(ii), (iii).
56. Both the ADA and Section 504 prohibit state and local governments, including LEAs, from discriminating when providing educational services, programs, and activities to children with disabilities. See 28 C.F.R. § 35.130(b)(1); 34 C.F.R. § 104.4(b)(1). Further, LEAs may not provide educational services or administer their educational programs in a way that results in, aids, or perpetuates discrimination against children with disabilities. See 28 C.F.R. § 35.130(b)(1)(v), (b)(3); 34 C.F.R. § 104.4(b)(1)(v), (b)(4).
57. Both Section 504 and Title II of the ADA require LEAs to provide aids, benefits, and services to students with disabilities in the most integrated setting appropriate to the student’s needs, which is defined as a setting that enables individuals with disabilities to interact with persons without disabilities to the fullest extent possible. 34 C.F.R. § 104.4(b)(2); 28 C.F.R. § 35.130(d); 28 C.F.R. pt. 35, App. A, p. 450.
15

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 16 of 44 PageID #: 143
58. The Supreme Court has held that Title II of the ADA prohibits the needless isolation or segregation of persons with disabilities. Olmstead v. L.C., 527 U.S. 581, 600 (1999) (holding that “unjustified institutional isolation of persons with disabilities is a form of discrimination”). As the Supreme Court found, separating individuals with disabilities from their peers without disabilities “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,” and “severely diminishes life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 600-601. Unjustifiable disciplinary removals of students with disabilities from classrooms where they are educated alongside peers without disabilities violates this prohibition on unnecessary segregation.
STATEMENT OF FACTS A. The BOE Fails to Provide its Students with Disabilities with Effective Behavior Supports,
Including FBAs and BIPs 59. The BOE frequently removes students with disabilities who need behavior supports from the classroom for disciplinary reasons based on their behaviors. Such removals manifest in a variety of ways. Informal removals sometimes occur when the BOE sends a student home from school early by calling a student’s parents and asking them to pick up the student from school before the end of the school day or to keep the student at home. The BOE does not record these informal removals as disciplinary incidents in the West Virginia Education Information System and therefore they are not included in the data the BOE is required to maintain. The school may also formally suspend or expel the student for disciplinary reasons, or may place the student in an alternative school or refer the student to law enforcement. The BOE also regularly removes students with disabilities who require behavior supports from their mainstream, general education
16

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 17 of 44 PageID #: 144
classrooms and instead places them in behavior disorder classrooms for only students with disabilities, often after imposing informal or formal disciplinary removals from school.
60. These disciplinary removals often occur because the BOE is failing to provide its students with effective behavior supports and interventions, including FBAs, BIPs, and other positive behavior supports such as behavior coaching, case management and individual care coordination, and self-regulation or social skills training.
61. The widespread nature of this problem is reflected throughout the KCS system. As indicated above, rates of disciplinary removals of students with disabilities is consistently high across schools within KCS.
62. Despite notice that it is unlawfully failing to provide its students with effective behavior supports across the district, the BOE has not changed its practices. Instead, it has continued to remove students for their behaviors rather than developing and implementing effective behavior supports that would allow these students to succeed in general education classrooms. Because of the BOE’s actions and inactions, students with disabilities are at substantial and imminent risk of removal from schools throughout the KCS district.
63. These unnecessary removals cause students with disabilities to fall behind their peers without disabilities behaviorally and academically, and place them at greater risk of dropping out of school, failing to graduate with a diploma, and/or involvement with law enforcement and the courts. These effects can harm these students for years and derail their future opportunities both at school and in adult life.
64. As a result, the BOE has deprived G.T., K.M., and the Plaintiff class of the education to which they are entitled.
17

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 18 of 44 PageID #: 145
B. Plaintiff G.T. 65. G.T. is a nine-year-old boy in the third grade who receives special education and related
services under the IDEA. He has been diagnosed with autism and ADHD. The BOE has failed to provide him with needed behavior supports. The BOE has also subjected him to multiple out-ofschool suspensions and other disciplinary measures as a result of behaviors.
66. G.T. has many strengths that should help him succeed in school. G.T. has a strong reading ability, a deep appreciation for history, and an expansive vocabulary that is advanced for a child his age. Additionally, G.T. has a strong aptitude for and interest in mathematics. His math skills are more advanced than the material and instruction he receives in his special education classroom. He also has good social skills: G.T. follows directions from his teachers and gets along well with his classmates and siblings.
67. G.T.’s parents actively advocate for G.T. to receive an appropriate education, and want a strong working relationship with G.T.’s school.
68. G.T. is a young child with autism, and he faces challenges as a result of his disability. He becomes anxious when he is overwhelmed or placed in unfamiliar situations. At times, G.T. becomes upset by external factors, which then leads to a physical outburst.
69. G.T. requires specially-designed instruction and related services to make progress in the general education curriculum. G.T.’s disabilities cause him to engage in challenging behaviors at times. It is because of G.T.’s challenging behaviors that he needs effective behavior supports to be successful.
70. When G.T. started first grade at Bridgeview, G.T.’s parents informed the BOE that G.T. had meltdowns, extreme fear, and negative reactions to both flies and bees. At school, G.T. displayed behaviors that interfered with his education, but the causes were not always clear.
18

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 19 of 44 PageID #: 146
71. Despite this, the BOE did not conduct an FBA or create a BIP, and did not provide other behavior supports. Instead, the BOE placed G.T. in a self-contained intellectual disability classroom for over 90% of his day. His IEP did not set ambitious goals for him, but merely highlighted G.T.’s deficits and inability to complete work at grade level.
72. G.T.’s mother expressed her concerns about G.T. being placed in a self-contained classroom at his IEP meeting. G.T.’s special education teacher shared that, like G.T.’s parents, she also did not believe that the self-contained classroom was the appropriate placement for G.T. Rather, she believed G.T. could excel in general education with supports. Nevertheless, the BOE placed G.T. in the self-contained classroom throughout his first grade year.
73. The BOE did not document G.T.’s progress during first grade, nor did it provide a rationale for maintaining G.T. in a segregated placement in second grade.
74. Nevertheless, at the start of second grade, G.T. remained in a segregated, self-contained classroom for students with an intellectual disability.
75. In September 2018, the BOE moved G.T. into a general education classroom for approximately three-quarters of each day. Although the BOE increased G.T.’s time in the general education setting, it did not provide G.T. with the behavior and academic supports necessary to enable him to succeed in that setting. As a result, the academic material provided to G.T. was not tailored to engage G.T. or address his learning needs, and he continued to have meltdowns in the classroom.
76. That fall, G.T.’s teachers sent him to the principal’s office numerous times for being disruptive in the classroom.
77. For example, G.T. received one-day out-of-school suspensions on both October 1 and October 3, 2018. These suspensions resulted from G.T. becoming overwhelmed and having
19

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 20 of 44 PageID #: 147
physical outbursts. On October 1, G.T. was upset about losing a “Dojo point,”6 and on October 3, he was frustrated because he was not allowed to shop at the book fair with other students. The BOE had not provided G.T. with any behavior supports or a BIP at the time of these incidents.
78. After these two suspensions, a school psychologist drafted what the BOE referred to as a BIP without first conducting an FBA or obtaining input from G.T.’s parents.
79. Instead, the BOE directed G.T.’s classroom teacher to take notes on G.T.’s behavior and share them with the psychologist, who would then enter the information into her records. There is no indication that any of this information was used to determine the purpose and effect of G.T.’s behavior or develop any sort of behavior plan to help G.T. learn how to regulate his emotions and behaviors when he becomes overwhelmed. It is unclear what the information recorded by G.T.’s teacher was used for, if at all.
80. On November 13, 2018, the school again suspended G.T. for one day. School staff stated that G.T. “refused to do any work” but did not indicate any reason why he was unwilling to work. Rather, his teacher sent him to the office twice because he was upset and agitated. Office staff called G.T.’s father and asked him to pick up G.T. early from school.
81. On November 15, 2018, the BOE placed G.T. in an in-school suspension after he became upset and acted out in physical education class. The incident summary drafted by the BOE notes G.T. “sobbing” or “crying” several times throughout. There is no indication that the BOE took this opportunity to try to understand what prompted G.T.’s behavior.
82. On November 29, 2018, G.T. was suspended for three days following an incident after he took candy from his teacher’s desk.
6 G.T.’s teacher used the Dojo system to track students’ behavior in the classroom. Students earned points for good behavior and lost points for negative behaviors. Students were told when they lost Dojo points.
20

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 21 of 44 PageID #: 148
83. Finally, after suspending G.T. five times that semester, the BOE held an IEP meeting on December 10, 2018. The only service added to G.T.’s IEP at that meeting was thirty minutes of “autism services” per month. G.T.’s parents expressed concerns that setting aside only thirty minutes per month to meet with an “autism teacher” would not meaningfully benefit G.T. However, no additional services or time were provided to support G.T. No behavior services or supports were provided to G.T., and the BOE did not seek G.T.’s parents’ consent to conduct an FBA to determine the causes of G.T.’s challenging behaviors. In addition, the BOE did not provide any training to G.T.’s general education teacher on how to respond to her students with disabilities whose behavior impede their learning. Nor was she provided training on implementing a BIP for G.T. with fidelity.
84. On December 11, 2018, G.T. became upset because he did not have money to spend at a holiday event at Bridgeview called “Santa’s Workshop.” School staff called G.T.’s father who brought money to the school. G.T. was in the office when his father arrived. G.T. was upset and wanted to go home, but his father told him he needed to stay at school. When G.T.’s father got up to leave, G.T. ran out of the building. After his father called to him and told him that he could not run away, G.T. stopped, began to cry, and told his father that he was sorry.
85. As a result of this incident, the BOE suspended G.T. for ten days, stating that the suspension was for “aggressive behaviors.” According to the BOE records, Bridgeview staff considered expelling G.T. for this incident.
86. As required by law, the BOE held another IEP meeting with G.T.’s parents on December 17, 2018, and the team found that his behaviors were a manifestation of his disability. As required by the IDEA, the BOE initiated an FBA to determine the causes for G.T.’s behaviors.
21

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 22 of 44 PageID #: 149
87. At that meeting, G.T.’s parents expressed their desire for G.T. to remain in general education, as they believed he could do well in that setting with appropriate support. Instead, the BOE placed G.T. in a self-contained behavior disorder classroom, over his parents’ objection. The BOE made this change in placement before it completed the FBA and before it created or implemented a BIP.
88. G.T.’s December 17, 2018 IEP removed him from the general education environment for academics and placed him for the majority of the day in classrooms solely with other students with disabilities. The BOE offered no opportunities to integrate G.T. with his peers for certain subject matters, part of the day, or for small lessons. Instead, his academic instruction in the selfcontained classroom was wholly segregated from his mainstream peers.
89. Following G.T.’s December 17, 2018 IEP, school staff told G.T.’s parents it would conduct an FBA and revisit his placement, but, to date, the BOE has not revisited G.T.’s placement.
90. The BOE did not begin collecting data for an FBA until January of 2019. 91. Now in third-grade, G.T. has remained in the behavior disorder classroom for the 20192020 school year. During G.T.’s due process hearing, the BOE’s autism programming consultant Dr. Jim Ball (“Dr. Ball”) testified, “to successfully integrate Student back into a regular education classroom would require determining the exact triggers that caused Student to be unsuccessful behaviorally in his second grade regular education classroom. Once those triggers are determined and accommodated, Student should begin spending increasing amounts of time in the regular education classroom.” J.T. & M.T., Due Process Decision ¶ 42. The BOE has not followed its consultant’s advice to determine the triggers causing G.T. to be unsuccessful in his second grade classroom. After over 17 months in a self-contained classroom, the BOE has made almost no attempts to reintegrate G.T. into his general education classroom, even on a small scale.
22

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 23 of 44 PageID #: 150
92. G.T. is not receiving effective behavior supports in his self-contained classroom. Instead, he is flatly told to “control” his behaviors. He receives no positive reinforcement when he behaves appropriately, but instead only receives negative feedback when he does something wrong, which includes being yelled at and forced to take personal time-outs in a small corner of the classroom. On a daily basis, he lacks positive role models that could help demonstrate to him how to improve his behavior in the classroom, as everyone in the behavior disorder classroom shares similar challenges.
93. The goals set by the BOE for G.T. are the same year after year. Academic and behavioral goals in G.T.’s current IEPs are identical to those of his past IEPs. For example, one of G.T.’s math goals in his 2018 IEP was copied verbatim from his 2017 IEP. The date was not even updated, so that the September 5, 2018 IEP erroneously contained a math goal G.T. was to achieve by August 2018. Copying goals from one year to the next indicates that G.T.’s IEPs are not designed to produce progress. See Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017).
94. The BOE conducted an FBA of G.T.’s behaviors in January 2019, but the assessment was wholly inadequate. As defined by WV Policy 2419, 126 C.S.R. 16, an FBA requires that both school personnel and the student’s parents evaluate the student’s behaviors of concern across environments. The BOE did not collect information from G.T.’s parents about his behavior at home. Additionally, the FBA does not target G.T.’s most significant behaviors interfering with his education, nor does it analyze them to provide hypotheses about why G.T. engages in the target behaviors.
95. The few recommendations contained in the FBA are not adequately specific to G.T. or are not being implemented in his classroom. For example, the FBA recommends that he use a
23

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 24 of 44 PageID #: 151
visual schedule to help him prepare for transitions between activities; however, G.T.’s visual schedule is often nowhere in sight.
96. In addition, staff in the self-contained classroom do not effectively engage G.T. in instruction, which contributes to his negative behavior. Students in G.T.’s classroom spend much of the school day looking at iPads without direct instruction or other support from the teacher or aides. The teacher occasionally calls G.T. and other students to her desk, but only to show them their grades. G.T may review material he already knows, but he is not learning new curriculum and is falling behind his same-grade peers. Additionally, students, including G.T., frequently lie on the floor due to a lack of chairs in the classroom.
97. Even during the few periods each week when G.T. has the opportunity to spend time with his classmates without disabilities, he is often marginalized. During music class with peers without disabilities, G.T. has been told to sit off to the side with a paraprofessional aide. G.T. is not allowed, like the other music students, to participate in dance activities or drum circle, or be with the rest of the class for other class-wide activities.
98. G.T. has significant strengths and is capable of succeeding in general education settings in his school, but the BOE is not providing him with the effective behavior supports he needs to be successful.
99. Because of his strengths in math, history, vocabulary, and reading, as well as his agreeable nature and willingness to interact with others, G.T. can succeed in general education. Effective behavior supports for G.T. should be designed to help him succeed in a general education classroom.
100. Consistent with their legal obligations, schools across the country regularly support students with much more significant needs than G.T.’s in general education classrooms
24

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 25 of 44 PageID #: 152
every single day. Rather than using strategies that have been proven effective to help G.T. meet challenging educational goals, the BOE removes G.T. from his classroom and does not provide G.T. with effective behavior supports he needs to help him achieve ambitious goals and challenging objectives.
101. With effective supports, G.T. is capable of succeeding in a general education setting. C. Plaintiff K.M.
102. K.M. is a nine-year-old boy in the fourth grade who receives special education and related services under the IDEA. He has been diagnosed with Down syndrome and ADHD. He has also been diagnosed with oppositional defiant disorder (“ODD”). The BOE has failed to provide him with needed behavior supports. The BOE has also subjected him to multiple out-ofschool suspensions and other disciplinary measures as a result of his behaviors.
103. K.M. has many strengths that should help him succeed in school. When focused on a task, K.M. is able to take in information while engaging with those around him. When he is interested in the topic, he is motivated and stays engaged in the work. K.M. is very independent and likes to be given responsibility. K.M. has a good sense of humor and a good understanding of his own wants and needs. K.M.’s parents actively advocate for K.M. to receive an appropriate education, and desire to establish a strong working relationship with K.M.’s school. K.M.’s parents also encourage K.M. to be involved in his community, through church and basketball.
104. K.M. is a child with Down syndrome and intellectual disability, and he faces challenges as a result of his disability, including difficulty with fine motor skills. At times, he can be restless and can have difficulty maintaining focus, consistent with his diagnosis of ADHD.
25

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 26 of 44 PageID #: 153
105. K.M. requires specially-designed instruction and related services to make progress in the general education curriculum. K.M.’s disabilities cause him to engage in challenging behaviors at times. As such, he needs effective behavior supports to be successful in school.
106. K.M. has attended his home elementary school, Alum Creek, since preschool. The BOE has noted challenges regarding K.M.’s behavior beginning in preschool and continuing to the present time. Prior to K.M. starting kindergarten, the IEP team initiated behavior goals for K.M., but did not add any behavior services or supports. The behavior goals in his IEP have remained nearly identical throughout his elementary school years.
107. The IEP created at the end of K.M.’s kindergarten year did not contain any new accommodations, did not include the creation of a BIP or other behavior supports, and did not include any instructional time designated for social skills or behavior curriculum.
108. In November 2016, during K.M.’s first-grade year, the BOE conducted an inadequate FBA (the “2016 FBA”). This FBA primarily relied on anecdotal records. The KCS Board Certified Behavior Analyst (“BCBA”) who conducted the 2016 FBA, Ms. Jones, did not contact K.M.’s parents to obtain information from them regarding K.M.’s behaviors. The 2016 FBA did not indicate the antecedents to K.M.’s behaviors or the consequences/contingencies of the behaviors. This limited FBA was K.M.’s operative FBA from November 2016 until May 2019, despite the fact that the school documented new challenging behaviors from K.M. during this period and continued to discipline K.M. for his behaviors.
109. After the 2016 FBA was completed, Ms. Jones did not review the FBA with K.M.’s parents. The BOE did not use the FBA to create a BIP for K.M.
110. Instead of implementing behavior supports for K.M., the BOE attempted to move K.M. to a self-contained classroom at a different school more than thirty minutes from his home
26

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 27 of 44 PageID #: 154
at the end of his first-grade year. The principal at Alum Creek told K.M.’s father that K.M. could not be educated with his same-age, typical peers, because K.M. was like “a blind person with no arms or legs who wanted to drive. Although [he] had the desire to drive, it was not possible and it would never happen.” The principal also told K.M.’s father that K.M. “doesn’t belong here.”
111. K.M.’s parents disagreed that K.M. could not be educated in his home school, believing he could do so if provided with appropriate behavior supports, and thus refused to agree to the BOE’s proposed placement. As a result of this dispute, K.M. missed the first six weeks of school in second grade. During this time, the BOE did not provide K.M. with any educational or supplementary services.
112. Finally, following a facilitated IEP meeting on September 28, 2017, K.M. returned to Alum Creek to start his second-grade year.
113. When K.M. began second grade, the BOE had still not developed a BIP for him, despite having conducted an FBA nearly one year earlier. K.M. continued to demonstrate behavioral challenges. Although the BOE set behavior goals for K.M., neither K.M. nor his teachers were taught any strategies to help K.M. meet such behavior goals.
114. During the 2017-2018 school year, staff at Alum Creek called K.M.’s parents to pick him up early from school for alleged misbehavior over 20 times. These informal “send homes” deprived K.M. of educational time, but were not recorded as official suspensions and were largely not tracked by the school.
115. In April 2018, a year and a half after completing K.M.’s FBA, the BOE finally created a BIP (the “April 2018 BIP”).
116. The April 2018 BIP was one page in length, contained little detail, and relied on, without updating, the 2016 FBA. The BIP did not identify appropriate replacement behaviors to
27

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 28 of 44 PageID #: 155
meet K.M.’s needs, and instead included the identical compliance goals that had been in K.M.’s IEP for years (i.e., to stay in his assigned area and engage in tasks without challenging behaviors). The BIP contained no plan for training teachers on how to effectively implement the plan.
117. At the beginning of third grade, K.M. began engaging in different challenging behaviors, and the BOE suspended him on multiple occasions. In the fall of 2018, K.M. received four separate out-of-school suspensions for “disruptive/disrespectful” conduct, such as running outside behind the playground, refusing to leave the restroom, pretending to urinate on a carpet, and refusing to leave music class.
118. The BOE developed a revised behavior plan in October 2018 (the “October 2018 BIP”), in the fall of K.M.’s third grade year. The October 2018 BIP was developed without any input from K.M.’s parents because the BOE scheduled an IEP meeting to discuss the BIP at a time that K.M’s parents had informed the school they could not attend. The BOE also did not conduct a new FBA, or update the 2016 FBA.
119. Like the April 2018 BIP, the October 2018 BIP provided no detail or instruction on how to respond to K.M.’s challenging behaviors, and simply referred to the supplementary services and behavior goals sections of the IEP. Neither the BIP nor the IEP contained any information on how teachers would be taught to implement the plan or how any training would occur. It did not outline how K.M. would be taught his replacement behaviors. It did not contain a section on how data were to be collected or tracked.
120. After the October 2018 BIP was created, K.M. continued to receive suspensions and was disciplined numerous times.
121. At the beginning of the second semester of his third-grade year, K.M. received a lengthy suspension following an incident during which K.M. allegedly pushed a chair into a
28

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 29 of 44 PageID #: 156
teacher’s legs while trying to leave the room. After this incident, the BOE conducted a meeting to determine whether K.M.’s behavior was a manifestation of his disability. At the meeting, school staff found that K.M.’s behavior was not a manifestation of his disability. K.M.’s parents disagreed and filed an expedited due process complaint to challenge that decision.
122. K.M.’s parents resolved their complaint through a settlement with the BOE. The settlement required that a different behavior analyst conduct a new FBA for K.M.
123. Per the settlement agreement, a new FBA (the “2019 FBA”) and BIP (the “2019 BIP”) were completed in the spring of 2019, at the end of K.M.’s third grade year.
124. In both the 2016 and 2019 FBAs, the BCBAs conducting the FBAs determined that staff working with K.M. were actually encouraging his challenging behaviors. In the 2016 FBA and October 2018 BIP, Ms. Jones observed that staff inadvertently contributed to K.M.’s behaviors by negotiating with K.M. to comply with directives – the exact opposite of what they were supposed to do. D.M. & S.M., Due Process Decision at 31. Another KCS BCBA, Ms. Carpenter, testified that she observed that staff failed to reward K.M.’s appropriate behaviors (i.e., when K.M. behaved well, staff did not reward him with attention or by speaking to him). Id. Despite these observations over the course of two years, no plan was implemented to train K.M.’s teachers and staff on the proper way to provide behavior supports. The school records show no documentation of any follow-ups or fidelity checks conducted by any of the KCS BCBAs. Id.
125. K.M.’s “one-on-one” aide received minimal training on how to implement the 2019 BIP. None of K.M.’s IEPs or BIPs enumerate time to train staff on how to properly implement K.M.’s BIP. K.M.’s parents were never offered and never received such training.
126. In addition to failing to properly develop and implement a BIP, the BOE has further encouraged K.M.’s negative behaviors by failing to provide K.M. with an engaging academic
29

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 30 of 44 PageID #: 157
curriculum that has been appropriately modified to meet his needs. Although K.M.’s IEPs have contained a long list of supplementary aids, services, and supports, the majority of them have not been implemented or have been implemented inconsistently.
127. Throughout second and third grade, the BOE did not focus on modifications and accommodations that would engage K.M., and instead provided him with worksheets that were modified solely by reducing the number of problems for him to answer. Because he had not been engaged in learning the material covered in the worksheets, K.M. would fail these “modified” assignments, and his challenging behaviors continued.
128. At the start of second grade, K.M. was also evaluated for assistive technology (“AT”). The results of the AT evaluation contained multiple recommendations, none of which were implemented by the BOE.
129. Although K.M. spends a little under half of his day in a general education setting, the BOE has failed to meaningfully include K.M. in these settings. K.M. is seated apart from the other children in his general education classroom. His desk is in the corner of the classroom and he is physically barricaded from the other children by the teacher’s and aide’s desks, and not given opportunities to interact with his peers.
130. At the end of K.M.’s third grade year, the BOE again attempted to remove K.M. from his classroom at Alum Creek, and place him in a segregated classroom for children with behavior disorders at a separate school. The recommendation was made less than three weeks after implementing K.M.’s new BIP. At that time, there was data showing that K.M. had made some progress, and no major disciplinary incidents had occurred since implementation of the new BIP.
30

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 31 of 44 PageID #: 158
131. After objecting to this change in placement, K.M.’s parents filed another due process complaint, which prevented this change in placement from occurring. K.M. started fourth grade at his home school and continues to be educated there.
132. A due process hearing was conducted on October 28, 29, and 30, 2019. 133. After the hearing, the Hearing Officer found that the BOE failed to provide FAPE to K.M. by failing to timely develop a BIP for the majority of K.M.’s second grade year. Id. at 32. The Hearing Officer also found that the BOE failed to provide FAPE throughout K.M.’s second grade until the end of third grade, because the BOE failed to ensure that K.M.’s BIP was consistently implemented by school personnel. Id. 134. The Hearing Officer also found that the BOE tried to change K.M.’s placement to a separate classroom too soon after it began implementing the May 2019 BIP. Id. at 36. 135. The Hearing Officer also found that the BOE failed to provide FAPE to K.M. by failing to provide him with specially-designed instruction, including appropriate curriculum modifications. Id. at 33. 136. The Hearing Officer also found that the BOE failed to provide FAPE to K.M. by failing to provide a social skills curriculum. Id. at 36. 137. Despite finding that the BOE failed to provide K.M. a FAPE by (i) failing to provide effective behavior supports for two years, (ii) failing to ensure K.M.’s behavior plans were being followed with consistency, (iii) failing to provide a social skills curriculum to ensure K.M. could be included in general education, and (iv) failing to make appropriate curriculum modifications, the Hearing Officer granted only limited relief, and did not order most of the remedies requested by K.M.
31

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 32 of 44 PageID #: 159
138. The Hearing Officer denied all of K.M.’s requests to have the BOE engage independent specialists to assist the BOE in conducting a comprehensive FBA and developing a new BIP, modify K.M.’s curriculum, and conduct trainings for staff responsible for teaching K.M and implementing his BIP.
139. The Hearing Officer found that the BOE did not provide any evidence that K.M. could not be served effectively or efficiently at his current elementary school. Id. at 28. Despite this, the Hearing Officer gave the BOE unilateral authority, without convening his IEP team or otherwise getting input from his parents, to determine that it could not serve K.M. “effectively or efficiently” at Alum Creek, and subsequently place K.M. in a self-contained classroom in another school within the district. This was legal error: under the IDEA, a child with a disability is to be educated “to the maximum extent appropriate” with children who are not disabled. 20 U.S.C. § 1412(5)(a). A child with a disability is only to be removed from the regular educational environment when “the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(5)(a).
140. The Hearing Officer also misstated the testimony of one of K.M’s expert witnesses, Dr. Sara Boyd. In her decision, the Hearing Officer states that “[K.M.’s] expert . . . recommended a small classroom with intensive behavioral supports.” Id. at 45. Dr. Boyd, however, never testified that K.M. should be placed in such classroom. Although she testified that K.M. may initially need more behavior supports to help learn prosocial behaviors, she recommended such supports in the context of fully transitioning K.M. to a general education setting, and never recommended placing K.M. in a self-contained classroom. See Hr’g Tr. at 150:1-16 (Oct. 29,
32

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 33 of 44 PageID #: 160
2019). Dr. Boyd emphasized in both her testimony and report that all of her recommendations could be implemented in a general education setting.
141. The Hearing Officer directed the BOE to consult with its expert, Dr. Ball, to review the May 2019 BIP and determine if the plan is sufficiently assisting K.M. in meeting his goals. D.M. & S.M., Due Process Decision at 44. The Hearing Officer further directed that, if the May 2019 BIP was not sufficiently assisting K.M., then the BOE was to complete a new FBA and BIP. Id. at 44-45.
142. The BOE was also ordered to have its curriculum specialists review K.M.’s academic curriculum and modify as needed. Id. at 45. Instead of providing individualized modifications, the BOE has recommended that K.M. should be placed in a segregated classroom and receive the curriculum that is taught in that classroom.
143. At an IEP meeting held in February 2020, the BOE determined that it could not “effectively or efficiently” serve K.M. at his neighborhood school (a legal standard contrary to the requirements of the IDEA) and would instead be moving him to a segregated classroom at another school, over K.M.’s parents’ objections. The BOE made this determination without first implementing its expert’s revisions to K.M.’s BIP, without implementing any training for staff or checking to see whether the BIP was being implemented with fidelity, without appropriately modifying K.M.’s curriculum at his home school, without implementing a social skills program, and without implementing the assistive technology recommendations presented at the February 2020 meeting.
144. K.M. has significant strengths and is capable of succeeding in general education settings in his school, but the BOE has not, and continues to refuse to even attempt to, provide him
33

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 34 of 44 PageID #: 161
with the effective behavior supports he needs to be successful. Effective behavior supports for K.M. should be designed to help him succeed in the general education classroom.
145. Consistent with their legal obligations, schools across the country regularly support students with much more significant behavioral needs than K.M.’s in general education classrooms every single day. Rather than using strategies that have proven effective in helping students like K.M. meet challenging educational goals, the BOE is focused solely on removing K.M. from his classroom and home school. The BOE has not provided K.M. with the effective behavior supports he needs to help him achieve ambitious goals and challenging objectives.
146. With effective supports, K.M. is capable of succeeding in a general education setting. D. The Plaintiff Class
147. G.T.’s and K.M.’s experiences at KCS are shared by other KCS students who need behavior supports and experience disciplinary removals from any classroom. These students experience the same injuries and require the same relief as G.T. and K.M.
148. The BOE is required to incorporate and implement a preventive discipline program that takes behavior into account for students with disabilities. W. Va. Code § 18A-5-1 (2019). To comply with this directive, IEP teams must consider whether a student’s behavior impedes his or her learning and, if it does, must consider the use of behavior supports and interventions to address the behavior. 20 U.S.C. § 1414(d)(3)(B)(i); W. Va. Code § 18A-5-1. If a student with an IEP is subject to disciplinary action, the IEP team must evaluate the supports in place for the student and revise the plan as needed, including through the development or revision of FBAs and BIPs. See, e.g., 20 U.S.C. § 1400 et seq.; W. Va. Code § 18A-5-1.
34

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 35 of 44 PageID #: 162
149. Rather than adhere to its own policies and procedures, as well as federal and state law, the BOE does not appropriately address students’ behaviors that are caused by their disabilities and instead removes them from the general education classroom.
150. First, the BOE fails to adequately analyze the root causes of students’ concerning behaviors, and therefore fails to create effective IEPs or BIPs for them. Staff perform FBAs or develop BIPs without consulting behavior analysts or others with expertise who could help them understand how to analyze student behavior. As a result, students are provided with ineffective behavior supports that do not address the behaviors associated with the student’s disability.
151. Even when students have BIPs that on paper contain appropriate behavior interventions, the BOE fails to ensure that such plans are effectively implemented. The BOE fails to train general education teachers to adequately respond to children with disabilities whose behaviors impede their learning by implementing their BIPs with fidelity. The BOE also fails to provide adequate opportunities for its teachers to consult with behavior specialists or others with expertise about how to implement BIPs, including when BIPs do not adequately prevent or ameliorate concerning student behavior and must be revised.
152. The BOE routinely removes students with disabilities from the classroom for their behaviors due to its failure to adequately evaluate students with disabilities, or effectively implement behavior plans and other interventions. Such removal takes place in a variety of ways: this includes undocumented “send homes” or “keep homes,” suspensions, and even expulsions. As stated above, during the 2018-2019 school year, the West Virginia Department of Education reported that KCS had a total of 4,312 students with an IEP. The BOE removed these students with IEPs from the classroom at least 1,611 times: including at least 193 one-day out-of-school suspensions, 412 one-day in-school suspensions, 595 out-of-school suspensions lasting between
35

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 36 of 44 PageID #: 163
one and ten days, 248 in-school suspensions lasting between one and ten days, 93 out-of-school suspensions lasting ten days, and 70 out-of-school suspensions lasting longer than ten days. The total number of removals increased by at least 234 incidents from the number reported for the 2017-2018 school year.
153. The IDEA requires states to collect and annually report data on its progress toward meeting targets with regard to the provision of special education. 20 U.S.C.A. § 1453(d). The BOE submits data to the West Virginia Department of Education annually and therefore knew or should have known the rates at which it suspends and expels students with IEPs.
154. Because the BOE disciplines its students with disabilities instead of providing effective behavior supports, these students are stigmatized and isolated, thereby leaving them vulnerable to bullying or rejection by their peers. The emotional trauma associated with being unwelcome and excluded from school compounds the difficulty children already face upon return or reintegration into the general education classroom—if they are actually reintegrated. Further, they are more likely to be placed in residential facilities or other forms of institutionalization, including the delinquency system. Discipline for KCS students with disabilities is more likely to take the form of a referral to law enforcement than for other students, and juvenile courts may use documented suspensions against the student in truancy proceedings, which makes it more likely that they will be taken out of their homes. See In re Brandi B., 231 W.Va. 71, 743 S.E.2d 882 (W. Va. 2013) (holding that “adjudicating a juvenile a status offender on the basis of absences occasioned by disciplinary suspension is rationally related to the Legislative purpose”).
155. Defendants have had ample notice of their systemic failure to provide effective behavior supports to students with disabilities who then experience disciplinary removals from the classroom. Local advocacy groups, including Plaintiffs’ counsel, have received numerous
36

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 37 of 44 PageID #: 164
complaints about the BOE’s failures to provide behavior supports to its students with disabilities, and have advocated on behalf of individual KCS students for years. Plaintiffs’ counsel also contacted KCS officials directly in advance of filing this Complaint to raise again their systemic concerns. Despite this notice, however, the BOE has not changed its policies, practices, and procedures for educating students with disabilities so that they comply with federal and state law.
CAUSES OF ACTION Count I
Violations of Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. 156. Plaintiffs reallege and incorporate by reference the foregoing paragraphs of this
Complaint as though fully set forth herein. 157. G.T., K.M., and each member of the Plaintiff class is a child with a disability who
is eligible for special education and related services under the IDEA. See 20 U.S.C. §§ 1401, 1412. Plaintiff The Arc WV’s members include the parents of, and other advocates for, G.T., K.M., and other members of the Plaintiff class.
158. Defendant the BOE, as the LEA, is responsible for the provision of FAPE in the LRE to all eligible students. See 20 U.S.C. §§ 1401(32), 1412(a)(1), 1412(a)(5).
159. By the acts and omissions alleged herein, the BOE has violated the rights of G.T., K.M., and the Plaintiff class under the IDEA, 20 U.S.C. § 1400 et seq., and its implementing regulations by:
a. failing to have in effect policies and procedures to ensure the BOE provides a FAPE to all eligible children in the district, 20 U.S.C. § 1412(a)(1); 34 C.F.R. § 300.101, including those students with disabilities who need behavior supports to receive a FAPE;
37

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 38 of 44 PageID #: 165
b. failing to effectively monitor implementation of and to enforce the IDEA’s requirements regarding the provision of FAPE in the LRE, 20 U.S.C. § 1416(a)(1)(C), (a)(3); 34 C.F.R. § 300.600. Count II
Violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 160. Plaintiffs reallege and incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 161. G.T., K.M., and each member of the Plaintiff class is an “otherwise qualified individual with a disability” within the meaning of Section 504. 29 U.S.C. §§ 794, 705(20). Their disabilities substantially limit one or more major life activities, including but not limited to learning, reading, concentrating, thinking, and communicating. 42 U.S.C. § 12102(2)(A). As school-age children who live in Kanawha County, G.T., K.M., and each member of the Plaintiff class is qualified to participate in KCS’s educational programs and services. 34 C.F.R. § 104.3(l)(2). 162. Defendant the BOE is a recipient of federal financial assistance subject to Section 504. 29 U.S.C. § 794(b)(2)(B). 163. By the acts and omissions alleged herein, the BOE has discriminated against G.T., K.M., and the Plaintiff class in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and its implementing regulations by, solely on the basis of disability:
a. excluding G.T., K.M., and the Plaintiff class from participation in, and denying them the benefits of, placement in the LRE, and otherwise discriminating against them, 34 C.F.R. § 104.4(a);
38

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 39 of 44 PageID #: 166
b. failing to provide them with a FAPE, including special education and related aids and services that are designed to meet their needs as adequately as the needs of children without disabilities are met and that adhere to the procedural safeguards set forth in Section 504, § 104.33;
c. denying them an educational opportunity that is equal to the opportunity afforded other children, § 104.4(b)(1)(ii);
d. denying them educational services that are as effective as the services provided to other children, § 104.4(b)(1)(iii);
e. unnecessarily providing them different or separate educational services, § 104.4 (b)(1)(iv);
f. aiding or perpetuating discrimination against them by providing significant assistance to schools that discriminate against these children on the basis of disability, § 104.4(b)(1)(v);
g. utilizing methods of administration that have the effect of subjecting them to discrimination on the basis of disability, have the effect of substantially impairing accomplishment of its objectives for students with disabilities, and perpetuate the discrimination of local schools against these children, § 104.4(b)(4);
h. failing to serve them alongside their peers without disabilities in academic and nonacademic settings to the maximum extent appropriate, § 104.34; and
i. denying them an equal opportunity to participate in non-academic and extracurricular services and activities, § 104.37.
164. The relief sought by Plaintiffs and the Plaintiff class would not require a fundamental alteration to KCS’s programs, services, or activities.
39

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 40 of 44 PageID #: 167
Count III Violations of the Americans with Disabilities Act, 42 U.S.C § 12131 et seq. 165. Plaintiffs reallege and incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 166. G.T., K.M., and each member of the Plaintiff class is an “individual with a disability” within the meaning of the ADA. Their disabilities substantially limit one or more major life activities, including but not limited to, learning, reading, concentrating, thinking, and communicating. 42 U.S.C. § 12102. 167. As school-age children who live in Kanawha County, G.T., K.M., and each member of the Plaintiff class is qualified to participate in KCS’s educational programs and services. See 42 U.S.C. § 12131(2). 168. Defendant the BOE is a public entity subject to Title II of the ADA. 169. By the acts and omissions alleged herein, the BOE has discriminated against G.T., K.M., and the Plaintiff class in violation of Title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations by, on the basis of disability:
a. excluding G.T., K.M., and the Plaintiff class from participation in, and denying them the benefits of, a full school day, and otherwise discriminating against them, 28 C.F.R. § 35.130(a);
b. denying them an educational opportunity that is equal to the opportunity afforded other children, § 35.130(b)(1)(ii);
c. denying them educational services that are as effective as the services provided to other children, § 35.130(b)(1)(iii);
40

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 41 of 44 PageID #: 168
d. unnecessarily providing them different or separate educational services, § 35.130(b)(1)(iv);
e. aiding or perpetuating discrimination against them by providing significant assistance to local school districts that discriminate against these children on the basis of disability, § 35.130(b)(1)(v);
f. utilizing methods of administration that have the effect of subjecting them to discrimination on the basis of disability, have the effect of substantially impairing accomplishment of its objectives for students with disabilities, and perpetuate the discrimination of local school districts against these children, § 35.130(b)(3);
g. failing to reasonably modify their policies, practices, or procedures as needed to avoid discrimination on the basis of disability, § 35.130(b)(7); and
h. failing to provide them educational services, programs, and activities in the most integrated setting appropriate to their needs, § 35.130(d).
i. failing to ensure that its schools do not unnecessarily segregate children with disabilities from their typical peers. See Olmstead v. L.C., 527 U.S. 581 (1999).
170. The relief sought by Plaintiffs and the Plaintiff class would not require a fundamental alteration to KCS’s programs, services, or activities.
Count IV Violations of the West Virginia Human Rights Act, W. Va. § 5-11-1 et seq. 171. The West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. prohibits discrimination in public accommodations against individuals with disabilities. 172. The BOE is a public accommodation under the HRA.
41

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 42 of 44 PageID #: 169
173. G.T. and K.M. are individuals with disabilities within the meaning of the HRA, because their learning is substantially impacted by their mental impairments.
174. The BOE has discriminated against G.T. and K.M. by denying them an appropriate education, by segregating them from other children of their age, and denying them the accommodations necessary for them to remain in a general education classroom.
REQUEST FOR RELIEF Plaintiffs G.T. and K.M., on behalf of themselves and all other persons similarly situated, and The Arc WV request this Court grant the following relief: A. Certification of this action, as a class action, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, consisting of: All Kanawha County Schools students with disabilities who (1) need but are not receiving behavior supports from the BOE, and (2) have experienced disciplinary removals from any classroom. B. A declaratory judgment that the BOE has violated the IDEA, Section 504, the ADA, and West Virginia law by failing to provide effective behavior supports to eligible Kanawha County school children and instead subjecting them to unjustified disciplinary removals from school. C. A preliminary and permanent injunction ordering the BOE to revise its policies, practices, and procedures as necessary to provide effective behavior supports to its students with disabilities, and take other appropriate affirmative actions to ensure that violations of law complained of above do not continue to be engaged in by the BOE, their agents, successors, employees, attorneys, and those acting at their direction. D. An order appointing an independent monitor or ombudsman whose duties shall include, but not be limited to:
42

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 43 of 44 PageID #: 170 1. Periodic, in-person monitoring of the BOE’s implementation of and compliance with the Court’s Order; 2. Proposing remedies necessary to bring about full compliance with the Court’s order; and 3. Regular reports to the Court and Plaintiffs’ counsel regarding the same.
E. An award of reasonable attorney’s fees and costs; and F. Such other relief as may be deemed proper by the Court.
43

Case 2:20-cv-00057 Document 22 Filed 04/10/20 Page 44 of 44 PageID #: 171
Respectfully submitted,
/s/ Lydia C. Milnes_______________________ Lydia C. Milnes (WV Bar ID No. 10598) Blaire L. Malkin (WV Bar ID No. 10671) Mountain State Justice, Inc. 1217 Quarrier St. Charleston, WV 25301
Lori Waller (WV Bar ID No. 11303) Disability Rights West Virginia 1207 Quarrier Street, Ste 400 Charleston, WV 25301-1845
Michael Faris (IL Bar ID No. 6204179) Karen Klass (IL Bar ID No. 6327168) Latham & Watkins LLP 330 N. Wabash Ave., Suite 2800 Chicago, IL 60611
Ira A. Burnim (DC Bar No. 406154) Lewis Bossing (DC Bar No. 984609) Judge David L. Bazelon Center for Mental Health Law 1090 Vermont Avenue, Suite 220 Washington, DC 20005
Shira Wakschlag (DC Bar No. 1025737) The Arc of the United States 1825 K Street NW, Suite 1200 Washington, DC 20006
Attorneys for Petitioner
44

 
 Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 1 of 17 PageID #: 381

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

G.T., by his parents Michelle and Jamie T. on
behalf of himself and all similarly situated individuals,
and THE ARC OF WEST VIRGINIA,
Plaintiffs,
v.
KANAWHA COUNTY SCHOOLS and RON DUERRING, Superintendent, Kanawha County Schools, in his official capacity,
Defendants.

CIVIL ACTION NO. 2:20-cv-00057

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Defendants’ Partial Motion to Dismiss Amended Complaint (Document 26), the Memorandum of Law in Support of Defendants’ Partial Motion to Dismiss the First Amended Class Action Complaint (Document 27), the Plaintiffs’ Memorandum in Opposition to Defendants’ Partial Motion to Dismiss (Document 30), and the Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Partial Motion to Dismiss (Document 34), as well as the Plaintiffs’ First Amended Class Action Complaint (Document 22) and all attached exhibits.1 For the reasons stated herein, the Court finds that the motion to dismiss must be granted in part and denied in part.

FACTUAL ALLEGATIONS The Plaintiffs, G.T., K.M., and The Arc of West Virginia, bring this action on behalf of themselves and a class of similarly situated students. They named the Board of Education of

1 Counsel for both parties submitted thorough, well-researched, and well-reasoned briefing in this matter. In addition to benefiting their clients, that effort permits the Court to more efficiently resolve the motion.

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 2 of 17 PageID #: 382
Kanawha County (BOE) and Ron Duerring, Superintendent, as Defendants. G.T. and K.M. are elementary school students attending Kanawha County Schools. G.T. has autism and attention deficit hyperactivity disorder (ADHD). K.M. has Down syndrome and ADHD. They are both students with disabilities who are eligible for special education. The Arc of West Virginia is a not-for-profit membership organization focused on disability rights, particularly for those with intellectual and developmental disabilities. Among other services, it provides support for families of children receiving special education services at public schools in West Virginia. G.T and K.M. are each constituents of the Arc, and their parents are members. More than twenty students eligible to attend Kanawha Schools are served by the Arc, including seventeen students at Kanawha Schools.
The purported class consists of: “All Kanawha County Schools students with disabilities who need behavior supports and have experienced disciplinary removals from any classroom.” (Am. Compl. at ¶ 39.) More than 5,500 Kanawha Schools students have disabilities and receive special education or other services pursuant to the IDEA (Individuals with Disabilities Education Act) or Section 504 of the Rehabilitation Act. More than 2,000 of those students “have disabilities such as emotional disturbance, autism, other forms of [intellectual or developmental disabilities], or other health impairments, including ADHD” that may require behavioral supports. (Id. at ¶ 40.) Students with disabilities in Kanawha Schools are subject to frequent suspensions, with at least 1,486 in the 2015-2016 school year and 1,611 in the 2018-2019 school year. The Plaintiffs allege that these frequent disciplinary measures, as well as overuse of segregated classrooms, result from the BOE’s systematic failure to provide behavioral supports to students with disabilities.
2

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 3 of 17 PageID #: 383
G.T. and K.M. contend that the BOE has failed to provide them with a Free Appropriate Public Education (FAPE) as legally required. They each have disabilities with a behavioral component. Rather than providing adequate behavioral supports, the BOE utilized disciplinary measures, including suspension and expulsion, to remove them and similarly situated students from classrooms. In addition, the BOE often places children in segregated classrooms with little educational value based on their behavioral disabilities, depriving them of the educational opportunities available only in general education classrooms.
G.T. filed a complaint with the West Virginia Department of Education’s Office of Federal Programs (WV OFP) on behalf of himself and a class of similarly situated students on June 5, 2019. He alleged that Kanawha Schools failed to provide him and similarly situated students with a FAPE. Following a due process hearing, the hearing officer dismissed the class allegations and allegations of violations of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act for lack of jurisdiction and denied all individual relief. K.M. filed a complaint with the WV OFP on behalf of himself and a class of similarly situated students on June 27, 2019. The hearing officer again dismissed class allegations and allegations of ADA and Section 504 violations for lack of jurisdiction. The hearing officer granted limited individual relief to K.M. and denied additional requested relief.
G.T. has a vocabulary that is advanced for his age and has an aptitude for math, making him academically capable of participating in general education classes for much of his school day. His disabilities cause him to have meltdowns or physical outbursts in response to certain triggers, including unfamiliar situations and becoming overwhelmed. Instead of providing behavioral and academic supports, the BOE placed G.T. in a self-contained segregated special education
3

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 4 of 17 PageID #: 384
classroom for 90% of the school day for first grade and the start of second grade. In the fall of 2018, he was moved into a general education classroom for the majority of the school day, but was not provided with behavioral or academic supports. He experienced frequent meltdowns, resulting in being sent to the principal’s office, and he was suspended from school several times. The BOE eventually provided 30 minutes of autism services per month. Despite concern from his parents, the school did not provide further behavioral supports for G.T. or training for his teacher. Eventually, G.T. was suspended for ten days, and, over the objections of his parents and without completing a functional behavior assessment (FBA), placed in a self-contained behavior disorder room rather than general education. He remained in that classroom during 2019-2020 for his third-grade school year. When the FBA was conducted in January 2019, it was inadequate and has not been followed.
Despite an opinion from the Kanawha County Board of Education’s autism consultant suggesting that G.T. could be reintegrated if the school identified and accommodated his triggers, the BOE has not attempted to do so. He does not receive effective behavior supports in the selfcontained classroom. His Individualized Education Program (IEP) copies goals from previous years, rather than encouraging academic progress, and he spends much of his school day on an iPad without active instruction.
K.M. is a nine-year old fourth-grade student attending Kanawha County Schools. He has Down syndrome, ADHD, and oppositional defiant disorder (ODD), but has not been provided with needed behavioral support, resulting in several suspensions and disciplinary measures. K.M. is able to focus when interested in a topic, take in information, and engage with others. He has difficulty with fine motor skills and can struggle to maintain focus. His IEP includes behavior
4

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 5 of 17 PageID #: 385
goals, but not behavior support or instructional time devoted to social skills or behavioral curriculum. After his first-grade year, his home elementary school sought to move K.M. to a different school more than thirty minutes away to be placed in a self-contained classroom. His parents objected, and he missed school time during the dispute. When he eventually returned to his original elementary school, he was not provided a behavior intervention plan (BIP), and his teachers were not trained in addressing his challenging behavior. Instead, he was sent home early on more than twenty occasions during his second-grade year. The school developed a BIP in April 2018, without updating the FBA it had generated more than a year and a half earlier, but the BIP was inadequate to address K.M.’s needs. He received multiple out of school suspensions during his third-grade year, resulting in a revised BIP that again failed to address appropriate responses to his challenging behaviors and continued disciplinary suspensions.
Following a lengthy suspension in the second semester of his third-grade year, K.M.’s parents filed a complaint related to a determination that his behavior was not a manifestation of his disability. The school agreed to have a different behavioral analyst create a new FBA. Although this process identified ways in which school staff inadvertently contributed to K.M.’s behavior problems, the BOE did not provide appropriate staff training. He does not receive an engaging academic curriculum, and many of the services and supports outlined in his IEP have not been implemented consistently. During the time he spends in the general education classroom, he is physically separated from other students and unable to meaningfully interact with the class.
At the end of his third-grade year, three weeks after development of the new BIP in response to the new FBA, his local school again sought to move him to a different elementary school for placement in a segregated classroom for students with behavior disorders. K.M.’s
5

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 6 of 17 PageID #: 386
parents filed another due process complaint in response to the proposed school change, and he has remained in his home school. “Despite finding that the BOE failed to provide K.M. a FAPE by (i) failing to provide effective behavior supports for two years, (ii) failing to ensure K.M.’s behavior plans were being followed with consistency, (iii) failing to provide a social skills curriculum to ensure K.M. could be included in general education, and (iv) failing to make appropriate curriculum modifications, the Hearing Officer granted only limited relief, and did not order most of the remedies requested by K.M.” (Id. at ¶137.) The Hearing Officer permitted the Kanawha County Board of Education to unilaterally determine whether K.M. could remain in his neighborhood school or assign him another school and denied K.M.’s request for independent specialists to assist with developing a more comprehensive FBA and BIP, an appropriate curriculum, and staff training. The Hearing Officer directed the BOE to consult its experts to determine whether the 2019 BIP was adequate, complete a new FBA and BIP if not, and review and modify K.M.’s academic curriculum. The BOE then determined that K.M. should be moved to another school and placed in a segregated classroom, and receive the curriculum taught in that classroom.
The Plaintiffs contend that K.M. and G.T.’s experiences are representative of the putative class members. The BOE consistently fails to provide behavior supports and staff training to support students with disabilities, relying instead on disciplinary measures and segregated classrooms without adequate academic challenges. “[T]he BOE fails to adequately analyze the root causes of students’ concerning behaviors, and therefore fails to create effective IEPs or BIPs for them.” (Id. at ¶ 150.) It does not consistently implement behavior interventions that are included in BIPs and does not train or support the staff who interact with the students to facilitate
6

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 7 of 17 PageID #: 387
adherence to the BIPs. The BOE’s required records document the frequent suspensions of students with disabilities, and advocates, including the Plaintiffs’ counsel, have raised concerns with the BOE with no impact on the policies, practices, and procedures at issue.
The Plaintiffs allege violations of the Individuals with Disabilities Act, 20 U.S.C. § 1400 et seq., of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., and of the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq. They seek certification of a class consisting of “All Kanawha County Schools students with disabilities who (1) need but are not receiving behavior supports from the BOE, and (2) have experienced disciplinary removals from any classroom.” They also seek declaratory judgment, preliminary and permanent injunctive relief, appointment of an independent monitor or ombudsman, and attorneys’ fees and costs.
STANDARD OF REVIEW A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether a court is competent to hear and adjudicate the claims brought before it. “In contrast to its treatment of disputed issues of fact when considering a Rule 12(b)(6) motion, a court asked to dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of the motion.” Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986) rejected on other grounds, Sheridan v. United States, 487 U.S. 392 (1988) (but explaining that a court should accept the allegations in the complaint as true when presented with a facial attack that argues insufficiency of the allegations in the complaint). Reasonable discovery may be necessary to permit the plaintiff to produce the facts and evidence necessary to support their jurisdictional allegations. Id. The plaintiff has the burden of proving that subject matter jurisdiction exists. See Richmond,
7

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 8 of 17 PageID #: 388
Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). Dismissal for lack of subject matter jurisdiction is proper only if there is no dispute regarding the material jurisdictional facts and the moving party is entitled to prevail as a matter of law. Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
DISCUSSION A. Class Exhaustion The Defendants argue that the class claims must be dismissed for failure to exhaust administrative remedies, as required by the IDEA. They contend that each class member must individually exhaust remedies because, in their view, any remedies would be individualized to each student. The Plaintiffs argue that individual exhaustion by class members is not required because they allege systemic violations and seek systemic, rather than individualized, relief, rendering exhaustion futile. In the alternative, they contend that class representatives vicariously exhausted claims for the class as a whole. The Plaintiffs further note that it would take years for West Virginia’s two due process hearing officers to individually adjudicate claims for each putative class member. In addition, the Plaintiffs assert that exhaustion is not required for their ADA and Section 504 claims, which focus on stigmatization and isolation rather than rights and remedies addressed under IDEA. In reply, the Defendants argue that vicarious exhaustion has not been recognized for IDEA claims in the Fourth Circuit. They reiterate that the Plaintiffs’ claims require individualized relief, and therefore individualized exhaustion, because behavioral supports are an aspect of each student’s IEP. The Defendants contend that “the gravamen of Plaintiffs’ [ADA and Section 504]
8

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 9 of 17 PageID #: 389
claims is the lack of behavior supports to assist a child in his or her classroom” which “goes to the heart of a school’s responsibility to provide a FAPE,” requiring exhaustion for the ADA and Section 504 claims as well as the IDEA claims. (Def. Reply at 8-9.)
The IDEA requires states to provide disabled children with a FAPE (free appropriate public education) in the “least restrictive and appropriate environment, with the child participating, to the extent possible, in the same activities as non-disabled children.” MM ex rel. DM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 526 (4th Cir. 2002) (citing 20 U.S.C. § 1412(a)(5)(A)). Schools are not required to provide the best possible education or all services that might prove helpful for a child but must meet the minimum standard of providing a FAPE. Id. at 526-27.
Parents asserting violations of the IDEA are required to exhaust administrative remedies by requesting a due process hearing before bringing suit in federal court. Id. at 535; 20 U.S.C. § 1415(f). “The courts have recognized only three narrow exceptions to this exhaustion requirement, each arising largely out of the legislative history of the IDEA: (1) when the administrative process would have been futile; (2) when a school board failed to give parents proper notification of their administrative rights; or (3) when administrative exhaustion would have worked severe harm upon a disabled child.” Id. at 536. When a complaint does not expressly rely on the IDEA, exhaustion may still be necessary if “the gravamen of the plaintiff’s suit is…the denial of IDEA’s core guarantee—what the Act calls a ‘free appropriate public education.’” Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 748 (2017).
Neither party identified binding precedent with respect to whether individual exhaustion is futile and therefore not required for class claims of systemic practices that impede students’ ability to receive a FAPE. The weight of the authority suggests that, under some circumstances,
9

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 10 of 17 PageID #: 390
individual exhaustion is not required for such claims. The First Circuit, considering both exhaustion and class certification, found that allegations that students with mental health disabilities were improperly and unnecessarily segregated out of neighborhood schools depended on individualized analysis of each student, rather than systematic policies or practices. Parent/Prof'l Advocacy League v. City of Springfield, Massachusetts, 934 F.3d 13, 27–28 (1st Cir. 2019). Therefore, the court held that individual exhaustion was required, and the claims lacked commonality as required for class certification. Id. The Ninth Circuit found that exhaustion was required for a challenge to a school district’s provision of extended year services, likewise reasoning that the claims required individualized analysis. Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298 (9th Cir. 1992). The court explained: “Structuring a complaint as a challenge to policies, rather than as a challenge to an individualized education program formulated pursuant to these policies, however, does not suffice to establish entitlement to a waiver of the IDEA's exhaustion requirement. Plaintiffs must demonstrate in addition that the underlying purposes of exhaustion would not be furthered by enforcing the requirement.” Id. at 1304.
The Second Circuit summarized the required analysis as follows: “we are to consider whether administrative review would further the goals of developing facts, making use of available expertise, and promoting efficiency.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 113 (2d Cir. 2004). In that case, six named plaintiffs brought class claims2 alleging a variety of IDEA and other disability rights violations, including inadequate physical accommodations, failure to notify parents of pertinent information, failure to develop and/or implement adequate IEPs, and
2 The class had not been certified at the time the court considered the motion to dismiss.
10

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 11 of 17 PageID #: 391
lack of teacher and staff training. Id. at 111. The Second Circuit summarized prior cases
excusing exhaustion, and explained:
The common element among these four cases is that the plaintiffs' problems could not have been remedied by administrative bodies because the framework and procedures for assessing and placing students in appropriate educational programs were at issue, or because the nature and volume of complaints were incapable of correction by the administrative hearing process. If each plaintiff had been forced to take his or her claim before a hearing officer and appeal to another local or state official, there would have been a high probability of inconsistent results. Moreover, the plaintiffs' claims were such that an administrative record would not have been of substantial benefit to the district court.
Id. at 114.
Although the Fourth Circuit has not addressed class exhaustion under IDEA, it has
recognized vicarious exhaustion in other contexts. See, e.g., Chisholm v. U.S. Postal Serv., 665
F.2d 482, 490 (4th Cir. 1981) (finding exhaustion by class representative sufficient for a class Title
VII claim); King v. McMillan, 233 F. App'x 242, 244–45 (4th Cir. 2007) (recognizing availability
of single-filer rule or vicarious exhaustion). In Hoeft, the Ninth Circuit noted that exhaustion by
the class representatives, which did not take place in that case, could be sufficient to satisfy the
exhaustion requirement in the IDEA. Hoeft, 967 F.2d at 1310. District courts have also
recognized vicarious exhaustion for class claims under IDEA. H.P. v. Bd. of Educ. of City of
Chicago, 385 F. Supp. 3d 623, 636 (N.D. Ill. 2019) (finding one named plaintiff’s exhaustion of
claim related to the lack of translation services for parents with limited English proficiency
sufficient to permit class claims)3; DL v. D.C., 450 F. Supp. 2d 11, at fn. 2 (D.D.C. 2006) (finding
3 As in this case, allegations of systemic problems and collective claims were presented administratively, and the due process hearing officer found no jurisdiction to consider non-individual claims. Here, the Defendants contend that the Plaintiffs chose not to pursue the class allegations during the due process complaint process but argued at the administrative level that collective claims could be brought only in court.
11

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 12 of 17 PageID #: 392
that exhaustion would be futile because claims were systemic and policy-based such that agency expertise would not assist the court and school system had notice of the issue and failed to correct it, and in the alternative, concluding that representative plaintiffs had satisfied any exhaustion requirement on behalf of the class).
Whether the Court adopts the vicarious adoption rule for class complaints or relies on the factors relevant to futility, no further exhaustion is required in this case. G.T. and K.M. each exhausted administrative remedies on their similar complaints, and each provided notice during that process that they viewed the claims as systemic problems impacting a class of similarlysituated students. 4 The hearing officer found some violations as to K.M., but did not direct specific or effective relief, and denied relief as to G.T. The BOE continued to deny both students effective behavioral support, and both students continued to experience excessive segregation as well as discipline for disability-related behavioral problems. Even where the BOE recognized disability-related behavior issues and an IEP contained behavioral goals, it failed to provide behavioral supports. The complaint also alleges that students with disabilities were suspended at least 1,486 times in 2015-2016 and at least 1,611 times in the 2018-2019 school year. The BOE made no structural changes to address disabilities with a behavioral component. Students with disability-related behavioral issues are regularly placed in segregated classrooms that provide little educational benefit, regardless of their academic strengths.
As alleged by the Plaintiffs, these problems are not isolated incidences that could be corrected through the administrative process. “The BOE has no functioning system for
4 Although there is a lack of clarity as to whether the class claims were dismissed or the Plaintiffs chose not to pursue them, it is undisputed that the Defendants were well aware that the Plaintiffs sought collective relief on behalf of themselves and all similarly situated students in Kanawha County Schools.
12

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 13 of 17 PageID #: 393
identifying children with disabilities who need behavior supports and providing effective supports to them.” (Am. Compl. at ¶ 11.) Instead, students are subject to frequent disciplinary removals, including suspensions, expulsions, and informal requests for parents to pick them up for the day. The BOE does not follow appropriate procedures to gain parental input and identify the causes of problematic behaviors when conducting FBAs or developing IEPs or BIPs. Teachers, staff, and parents do not receive adequate training to implement BIPs when they are developed. Whether students are in general education classrooms or in segregated classrooms for students with behavioral disabilities, they receive no meaningful behavioral supports. The discipline and segregation in turn result in stigmatization and isolation from peers, making integration into general education classrooms more challenging.
These allegations are structural in nature, and the experiences of K.M. and G.T. demonstrate the inadequacy of the relief available through due process complaints. Absent procedures to appropriately address disability-related behavioral problems at every stage—from identifying students who require behavioral support, to analyzing the behavioral triggers and crafting a BIP, to implementing the BIP—tinkering with individual students’ IEPs or BIPs will not provide effective relief.5 The Plaintiffs seek structural relief in the form of declaratory judgment, injunctive relief, and appointment of an independent monitor.
Requiring hundreds or thousands of impacted putative class members to individually exhaust remedies would serve no purpose. The remedies available would not adequately address
5 The Defendants contend that the case will require evaluation of and changes to individual student’s IEPs. While the BOE might ultimately need to make such changes as a result of this litigation, should the Plaintiffs prevail, that is not the relief sought as part of this Court proceeding. The Plaintiffs will, of course, have to produce evidence in support of the allegations of systemic problems, as well as evidence in support of the factors for class certification, including commonality.
13

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 14 of 17 PageID #: 394
the alleged issues, and results would likely be piecemeal and inconsistent. West Virginia has two hearing officers, and the delay inherent in individual exhaustion would render any relief futile for many students. Administrative records will be of limited use, given the allegations related to policies and procedures. To the extent administrative records will assist the Court, those from G.T. and K.M. will be sufficient, and hundreds or thousands more would not be helpful. Likewise, the state and local authorities had the opportunity to apply their expertise and discretion as a result of G.T. and K.M.’s hearings. They were also placed on notice of the collective nature of the allegations, giving the BOE the opportunity to correct any shortcomings prior to this suit. Therefore, the Court finds that individual exhaustion by class members is not required under the facts alleged.
Having found that individual exhaustion of the IDEA claims is not required, the Court finds that it is unnecessary to determine whether the Section 504 and ADA claims relate to denial of a FAPE and are subject to the IDEA exhaustion requirement. The motion to dismiss the class allegations should be denied.
B. Standing The Defendants contend that The Arc of West Virginia lacks standing. They assert that representational standing in unavailable to the Arc WV as a membership organization because the claims “require individualized proof and the relief requested would necessarily require the participation of individual members of the organization.” (Def. Mem. in Supp. of Mot. at 17.) The Arc of WV argues that precedent supports its claim of associational standing, given the request for declaratory and injunctive relief for alleged systemic failures that will not require individual participation by class members.
14

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 15 of 17 PageID #: 395
“An organization…can assert standing either in its own right or as a representative of its members. S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 182 (4th Cir. 2013). The Supreme Court has long established that “an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977). Organizations asserting associational standing must also identify at least one member who has or would suffer harm, and therefore would have standing. S. Walk at Broadlands Homeowner's Ass'n, Inc., 713 F.3d at 184.
The Arc of West Virginia is a membership organization focused on disability rights, and it serves families with children receiving special education services at public schools in West Virginia. G.T. and K.M. are constituents, and their parents are members. There is no dispute that students and their families, including G.T. and K.M., have standing to sue for IDEA and other violations. Likewise, there is no dispute that the issues involved in this suit are germane to The Arc of West Virginia’s purpose.
The Court finds that individual participation of members is not necessary to either assert the claims or obtain relief. As discussed in more detail above, the Plaintiffs seek systemic, structural changes in the way Kanawha Public Schools address disabilities with a behavioral component and the resulting challenging behavior and disciplinary responses. They do not ask the Court to become involved in individual students’ IEPs. Instead, they seek injunctive relief
15

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 16 of 17 PageID #: 396
designed to more broadly reform policies and procedures. Thus, the Court finds that The Arc of West Virginia has associational standing, and the motion to dismiss it should be denied.
C. Official Capacity Claims as to Superintendent Ron Duerring Finally, the Defendants argue that the claims against Ron Duerring, brought in his official capacity as superintendent of schools for Kanawha County, should be dismissed as duplicative because an official capacity suit is treated as a suit against the entity. The Plaintiffs argue that Superintendent Duerring is a proper party because he would “be responsible for remedying violations and implementing Court-ordered relief.” (Pl. Resp. at 21.) In reply, the Defendants argue that the BOE would effectuate any relief. The Fourth Circuit has found it proper to dismiss a § 1983 claim against a superintendent in his official capacity as duplicative where the board of education was also named. Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004). In an unpublished decision, the Fourth Circuit applied the same reasoning to official-capacity defendants in an IDEA case, explaining that “[b]ecause a claim against a public official in his official capacity is ‘essentially a claim against’ the governmental entity that the official represents, the district court correctly dismissed as duplicative the claims against the individual defendants in their official capacities.” Z.G. by & through C.G. v. Pamlico Cty. Pub. Sch. Bd. of Educ., 744 F. App'x 769, 780 (4th Cir. 2018) (citing and quoting from Love-Lane, 355 F.3d at 783). Where the offices are distinct, however, a suit may be maintained against both an official capacity defendant and another governmental body. Davison v. Loudoun Cty. Bd. of Supervisors, 227 F. Supp. 3d 605, 613 (E.D. Va. 2017). Neither party detailed the structure and duties of the BOE and the Superintendent to clarify whether the offices are distinct. Pursuant to West Virginia law, a superintendent is appointed by
16

Case 2:20-cv-00057 Document 46 Filed 07/16/20 Page 17 of 17 PageID #: 397
a majority of the county board of education and may be removed for cause. W.Va. Code § 18-41–3. “The county superintendent shall…Act as the chief executive officer of the county board as may be delineated in his or her contract or other written agreement with the county board, and, under the direction of the state board, execute all its education policies.” § 18-4-10. Given those provisions, the Court finds that the office of the Superintendent is not separate from the BOE, any relief as to the BOE would be implemented fully without the participation in this suit of Superintendent Duerring, and the claim against Mr. Duerring is duplicative. Accordingly, the motion to dismiss as to Superintendent Ron Duerring should be granted.
CONCLUSION Wherefore, after thorough review and careful consideration, the Court ORDERS that the Defendants’ Partial Motion to Dismiss Amended Complaint (Document 26) be DENIED as to the class claims and The Arc of West Virginia and GRANTED as to Superintendent Ron Duerring. The Court further ORDERS that Ron Duerring, Superintendent, Kanawha County Schools, sued in his official capacity, be DISMISSED from this suit. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any unrepresented party.
ENTER: July 16, 2020
17