# FILED
October 29, 19 97 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTION AT JACKSON

JOSEPH ROGERS, BY AND ) THROUGH HI S MOTHER AND NEXT ) FRIEND, JUDY L ONG, ) ) Plaintiff /Appella nt, ) Shelby Law No. 65673 T.D.

) vs. ) ) Appeal No. 02A01-9604-CV-00066 MEMPHIS CITY SCHOOLS, ) ) Defendant/ Appellee. ) )
APPEAL FROM THE CI RCUIT COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE
THE HONORABLE JAMES E. SWEARENGEN, JUDGE
For the Plaintiff/Appellant : For the Defendant/Appellee : Wi ll iam G. H ard wic k, II Ernest G. Kelly, Jr. Memphis, Tennessee Memphis, Tennessee
AFFIRMED
HOL LY KI RBY LI LL ARD , J.
CONCUR:
AL AN E . HI GHE RS, J
. DAV ID R. F ARM ER, J.1 Some of Congress’ most recent additions to the I DEA can be found at 20 U.S.C. §§ 1491 - 1491o. The IDEA wa s previously known as the Educ ation of the Handicapped Act and the Education for All Handicapped Children Act. OPINION The plaintif

f in this ca se asser

ts a claim under the

Tenness ee Gove

rnmenta l Tort L iability Act. In the complaint, the plaintiff allege d that the Memphis City

Schools fa

iled to provide special education services as required by federal law, and that this failure constituted negligence under the Act. The tria

l court dis misse d the case for l ack of subject matter jurisdiction. We affirm the dismissal on other grounds. Plaintiff/Appellant

Joseph Rogers (“Rogers”) was a st udent in th

e Memphis City

Schools (“Memphis”) during the 1992-93 and 1993-94 academic y ear s. Rogers ’ mother, Judy L ong (“Long” ), alleged that she made repeated requests that Rogers be pla ced in special education

classes during the 1992-93 school yea r. These requests were not gr anted. In October and November of 1993, Memphis placed Rogers in special education classe s, but for the most part Rogers remained in a general education prog ram. Long alleged that in May

of 1994, Memphis school officials held meetings to prepare a n Individualized

Education Plan (“IEP”), pursuant to the Indiv iduals wit h Disabilities Educ ation Act , 20 U. S. C. §§ 1400 to 1491o 1 Long asserte d that she was not given proper notice of the meeting, nor of her rig ht to appe al decis ions regar ding the IEP. T hereaf ter, L ong and Rogersmoved to Pennsy lvania a nd Roger s withdrew as a stud ent in the Memphis City

School Sy stem. Long filed thisComplaint on Rogers’ be half. The lawsuit wa s filed in t

he Shelby County Circuit Courtunder the Tennessee Governmental Tort L iability Act (“TGTL

A”), Tenn. Code Ann. §§ 29-20-101 to 29-20-407 (1980 & Supp. 1996) . In th e Complain

t, Roger s alleg ed that Me

mphis failedto follow the procedures required by federal law for providing special education service s, and that this constituted negligence per se under the TGTLA. Roger s sought damages for pain and suffer ing, as well as loss of educationalopportunities and other damages. Memphis filed a motion to dismiss forfailure

to state a claim upo n wh ich rel ief

cou ld be g ran ted , cl aim in g th at t he T GTLA does not allow suits for “educational malpractice,” that the exceptions to liabili ty in th e TG TLA applied, that Rog ers fail ed to exhau st his admin is trative r

eme dies, and that the case was moot because Rogers no longer lived in the jurisdiction. The trial court dismissed the complaint for lack of subject matter jurisdiction. From this decision, the plaintiffs appeal.2

On appeal, Rogers contends that the trial court erred in dismissing the Complaint for lack of subject matter jurisdiction. The is sue of subject matter jurisdiction is a question of law, and our review is de novo with n o presumption of correctness. See Jonesboro Drywall & Plaster Co. v. Kirby , No. 03A01-9508-CH-00276, 1995 WL 697901, at *1 (Tenn. App. Nov. 28, 199 5) (citing Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993)). Rogers notes that a violation of federal and state reg ulations can be the basis for a negligence claim under Tennessee law. See Bellamy v. Federal Express Corp. , 749 S.W.2d 31, 34-35 (Tenn. 1988) (holding that a violation of federal and state occupa tional saf ety and hea lth statutes constitutes negligence per se ). In this case, Roger s claims that Memphis was negligent under the Indiv iduals with D isabilities Education Act (“IDEA” ), 20 U.S.C. §§ 1400-1491 (1994), as well as the speci a l education laws in Tennessee, Tenn. Code Ann. §§ 49-10-101 to 49-10-1203 (1996). These duties purporte dly

included holding a hearing to prepa re an IEP for Rog ers, notifying Rogers ’ parent, and scheduling tests to assess Rogers’ special education needs. Thus, Rog ers argues tha t he has a
n egligence

claim for violations of federal and state law under the TGTLA and that the trial cour t erred in dismissing his claim for lack of subject matter jurisdiction. If Rogers states an

actiona ble claim under the TGTLA, then the trial court would have subject matter jurisdiction over this cause. See Tenn. Code Ann. § 29-20- 307 (1 996). Thu s, we must determine whether Rogers may assert a claim under the TGTL A for alleged

violations of the IDEA and the Tennessee special education laws. This issue is one of f irst impression in Tennessee. Congre ss enacted t

he I DEA “to a ssure tha

t all child ren with d

isabilitie s have av ailable t o them
. . . a free

appropr iatepublic ed

ucation. ” 20 U.S.C. § 1400(c ) (1994) . To acc omplish thisgoal, the IDEA providesf

ederal funding to states who meet certain requireme nts. Id. § 1412. Among other requirements, states must establish procedural safeg uards. Id. § 1412(5). The se safeguards include informing

the pare nt or gua rdian of all proc edures a

vailable and providing a d

ue proce ss hearing when a parent or guardian complain s that his or

her chil d has been denied the rights secured by the IDEA. Id. §§1415(b)(1)(C), (b)(2). States must also provide procedures for

the administrative review of decisions regarding the “identifica tion, evaluation, or educational placement of the child,
or the pro vision of free appropriate public education to such child.” Id. § 1415(b) (1)(E) . These administrative remedie s must be e xhausted be

fore a p laintiff

may filesuit in federal or state court2 The IDEA was a mended in 1986 to state explicitly that it did not prevent claims under the Constitution, Title V of the Rehabilitation Act of 1973, and other federal statutes protecting the rights of children with disabilities. See 20 U.S.C. § 1415(f) (1990). This amendment did not address pendent state law claims. 3 under the IDEA. See id. § 1415(e) (providing that only parties aggrieved by

an admini strativ e decision may bring

a civil action). To implement

the I DEA, Ten

nessee e nacted its o wn s pecial education statutes. See Tenn. Code An n. §§ 49-10- 101 to 49-10-1203 (1996). These statutes set forth the requirements for the content of IEPs, id. § 49-10-114, as well as the procedures for a dministrative review. Id. § 46-10- 601. As required

by the I DEA , plaintiffs must exhaust their administrative remedies before appealing an administrative decision to either fed eral or s tate court. See Crocker v. Tennessee Secondary Sch. Athletic Ass’n , 873 F.2d 933, 936 (6th Cir . 1989) (d ismissing parents ’ ID EA case because of their failure to exhaust state administrative remedies)
. In Smith v. Robinson , 468 U.S. 992, 104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984), the United States Supr

eme Court considered whether plaintiffs who sued to secur e a “fr ee appr opriate public education” for a

child with disabilities under the IDEA could recove r attorney’ s fees. Id. at 994, 104 S. Ct. at 3459. At that time, the IDEA did not prov ide for the awa rd of attorney ’s fees, but the plaintiffs had asse

rted othe r lega l theorie s for whic

h attorne y’ s fees c ould

be awarded. Id. The Court noted that the IDEA is a comprehe nsive scheme

and stated that a plaintiff may not “circumvent the require ments or supplement the remedies” provided under the I DEA by re sorting to other legal theorie s. Id. at 1019 , 104 S. Ct. a t 3 472. The Court therefore held that the I DEA is the exclusive
av enue fora child asserting the right to a free appropriate public education, and that the plaintiffs could not recover attorney ’s fees under theother legal theories that provided for such a n award. 2 Id. at 1021, 104 S. Ct. at 3473. Subsequent

cases c onst ruing Smith have held that p ende nt state law claims are barred because the IDEA provides the exclusive reme dy for a c hild denied the right

to a public special education. See, e.g. , Town of Burlington v. Department of Educ. , 736 F.2d 773, 788 (1st Cir. 1984) (holding that “sta te law cannot provide a separate basis for r elief via a pendent state claim”), aff’d sub nom. Burlington S ch. Committee v. Department of Educ. , 471 U.S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985); Barwacz v. Michigan De pt. of Educ. , 674 F. Supp. 1296, 1308 (W.D. Mich.4

1987) (dismissing plaintiff’s state law claims for denial of special educati on servic es for f

ailure to state a claim upon which relief could be gr anted). State court s in other jurisdictions have also held that plaintiffs cannot circumvent the administrative procedures re qu ired unde r the I DEA by pursuing an indepe

ndent cla im under s tate law. In Jenkins v. Carney-N adeau Publi

c Sch. , 505 N.W.2d 893 (Mich. App. 1993), a student wi

th disabilities sued her school system under Michigan’s state handicap discrimination statute. Id. The trial cou rt in that c ase dismis sed the la wsuit for failure to state a claim upon which relief could be granted. Id. On appeal, the Michigan court noted that the conditions challenged by the student wer e included in her I

EP as require d by the I

DEA. Id. at 894. Instead of following administrative procedures to chal lenge that plan , the stude nt went dir

ectly to court a

nd filed s uit under

the state handicap discrimination laws. Id. The cour t noted fir st that speci fic statutes prevail over genera l
ones. It re asoned th at, beca use the IDEA was more specific than the state’s handicap discrimination laws, a plaintiff

could not circumvent

the administrative procedures required under the IDEA and the state special education laws by suing under the state discrimination laws. Id. Consequently, the court held that the student was limited to the administrative remedies provided under the I DEA and state special education laws and affirmed the trial court’s dismissal of the case for failure to state a claim. Id. at 895. Furthermore, other courts have held that a plaintif f may not recove

r damages for pain and suffering because

the IDEA does not provide for such damages. I n Kelly K. v. Town of Framingham , 633 N.E.2d 414 (Mass. Ct. App. 1994), the pare nts of a student with learning disabilities brought a tort action to recover money damages for the alleged failure to provide her with
an education suited to her special needs. Id. at 416 . Cit ing Smith , the court observed that the IDEA is the only avenue

for a child denied the right to a free special education and that the re medies provided in the IDEA are e xclusive. Id. at 4 18. The cou rt n ot ed t hat ID EA does not provide for damages for pain and suffering. It held that the plaintiff could not recove r such damages by

resorting to other legal theories. Id. In another decision, Crocker v . Tennesse e Seconda

ry Sch. Athletic Ass’n , 980 F.2d 382 (6th Cir. 1992), a student with learning disabilities sought to recover compensatory a

nd punitive damages for a violation of the IDEA. Id. at 385. The court noted that theonly monetary damages a plaintiff could recover under the I

DEA were reimbursement expenses for the costs of providing educational5

services fo r the child. Id. at 386. Conseque ntly , the cour

t held tha t the stude

nt could not r ecove r general damage s for emotional anguish under the I DEA. Id. In this case, Rogers seeks to recover mone y damag es for pain and suffering under the TGT LA when those damages are not available unde r the IDEA. See Kelly K. , 633 N.E.2d at 418; Crocker , 980 F.2d at

386. The plaintiffs cannot “circumvent the requirements or supplement the remedie s” in the IDEA by res orting to other legal theories. Smith , 468 U.S. at 1019, 104 S. Ct. at 3469; see also Barwacz v. Michigan Dept. of Educ. , 674 F.2d 1296, 1308 (“[S]tat e law cannot provide a separate basis for relief via a pendent state claim”). Therefore , under Smith , Roger s is limited to the re

medies pr ovided in t

he I DEA and c annot supp lement tho se reme die s by res orting to a claim under the TGTLA f or alleged violations of the I DEA. Becau se the IDEA is the exclusive remedy for a ch ildwith disab ilities ass erting the right to
a free a ppropria te public education, Rogers has failed to state a cla im under the TGTLA. Alth ough the trial court dismissed the complaint for lack of subject matter jurisdiction, this Court can affirm
a trial court on different grounds when the tria l court reached

the correct result. See Continental Ca s. Co. v. Smith , 720 S.W.2d 48, 50 (Tenn. 1986). Theref ore, we affirm t he trial c ourt’s decision to dism iss t he com plain t. Al l oth er iss ues rai sed by the parti es are p reterm itte d by this hold ing. The decision of the trial court is affirmed. Costs are taxed to Appellant, for which execution may issue if nece ssary.

HOLLY KIRBY LILLARD, J.
CONCUR:
ALAN E. HIGHERS, J.

DAVID R. FARMER, J.