____________________________________________

IN THE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
_________

L.H., A MINOR STUDENT, ET. AL.,

Plaintiffs,

V.

HAMILTON COUNTY DEPARTMENT OF EDUCATION,

Defendant,
__________

No. 1:14-cv-00126

PLAINTIFFS FINAL STATUS REPORT

COME THE PLAINTIFFS, per the Courts Order (Doc. 209) and file this final

status report. The Plaintiffs show:

1. As the Court knows, the least restrictive environment claims under the

Individuals with Disabilities Education Act, IDEA, 20 U.S.C. 1400 et. seq., were

addressed at length in the Courts November 4, 2016 Memorandum. (Doc. 172).

Recently, the Court addressed the sole remaining Title II and Section 504 claims

involving most integrated setting in the Courts July 17, 2017 Memorandum. (Doc.

209).

2. These decisions ensure, among other things, that Hamilton County utilizes the

correct standards for L.H., a child with an intellectual disability, to receive an

appropriate, integrated education with his non-disabled peers to the maximum extent

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 appropriate. That is important for L.H. to return from a private setting to the public

school. See, A.A. v. Walled Lake Consol. Sch., 2017 U.S. Dist. LEXIS 91933, at *24 (E.D.

Mich. June 15, 2017)(young child with Down syndrome may return from private to

public school in future while disputes about least restrictive environment are fleshed out

in the Courts). Plaintiffs are immeasurably grateful for the Courts time and attention

on these matters.

3. Additionally, Plaintiffs have carefully reviewed the Courts footnote 5 in its

Memorandum on the Title II and Section 504 claims. (Doc. 209). After finding that

discriminatory intent is not required for equitable relief under Title II and Section 504,

the Court noted that its previous denial of equitable relief to L.H. under the IDEA was

premised on lack of discriminatory intent:

The Court notes, however, it considered Defendants conduct, specifically

Defendants lack of discriminatory intent, when denying Plaintiffs motion for an
equitable remedy in response to the Courts previous IDEA finding.

(Doc. 209, p. 9).

4. To the extent the Court may be signaling that it will consider an equitable remedy

under Title II or Section 504, given the effect of the discrimination or the lack of any

requirement of ill will, Plaintiffs believe that would be appropriate. Such equitable

remedy could include, without limitation, whole or partial tuition reimbursement for

Montessori based upon the Courts findings that L.H. has made some progress

behaviorally, academically, and socially. It could also include reimbursement to the

parents of the paraprofessional they funded entirely by themselves. Or, it could include

compensatory education (instructional time for L.H.) and/or district training on

measuring progress for a child with an intellectual disability (to include the Courts

excellent ladder analogy).

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 5. Such relief would be well grounded under Title II or Section 504. Well over two

decades ago, Congress determined that there was a compelling need to remedy

widespread discrimination against individuals with disabilities through a clear and

comprehensive national mandate. H.R. Rep. No. 101-485 (II), at 50 (1990), reprinted

in 1990 U.S.C.C.A.N. 303, 332. In 1990, Congress enacted the ADA to implement that

broad mandate. See 42 U.S.C. 12101(b). Congress found that historically, society has

tended to isolate and segregate individuals with disabilities, and, despite some

improvements, such forms of discrimination against individuals with disabilities

continue to be a serious and pervasive social problem[.] 42 U.S.C. 12101(a)(2).

6. The ADA, the Supreme Court instructs, has a sweeping purpose, and forbids

discrimination against disabled individuals in major areas of public life. PGA Tour, Inc.

v. Martin, 532 U.S. 661, 675 (2001). Remedial statutes like the ADA should be

construed broadly to effectuate its purposes. Tcherepnin v. Knight, 389 U.S. 332, 336

(1967). As a remedial statute, the ADA must be broadly construed to effectuate its

purpose of providing a clear and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities. Noel v. New York City Taxi and

Limousine Comm'n, 687 F.3d 63, 68 (2d Cir.2012); McNamara v. Ohio Bldg. Auth., 697

F. Supp. 2d 820, 828 (N.D. Ohio 2010)(ADA to be broadly construed as remedial

statute). Indeed, the ADAs comprehensive character is one of its most impressive

strengths. See PGA Tour, 532 U.S. at 675 (quoting the Hearings on S. 933 before the

Senate Committee on Labor and Human Resources and the Subcommittee on the

Handicapped, 101st Cong., 1st Sess., 197 (1989) (statement of the Attorney General).

7. This case is obviously well suited for equitable relief to effectuate the purposes of

Title II and Section 504. Regulations implementing Title II of the ADA prohibit public

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 entities from utilizing criteria or methods of administration that (1) have the effect of

subjecting qualified individuals with disabilities to discrimination and (2) have the

purpose or effect of defeating or substantially impairing accomplishment of the

objectives of the public entitys program with respect to individuals with disabilities[.]

28 C.F.R. 35.130(b)(3). Accord 45 C.F.R. 84.4(b)(4) (Rehabilitation Act)(emphasis

added).

8. For these reasons, the final order should grant judgment in favor of Plaintiffs

under the IDEA, 20 U.S.C. 1400 et. seq.; Title II of the ADA, 42 U.S.C. 12131 et seq.,

and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. It should declare,

consistent with the previous Memoranda, that HCDEs attempt to place L.H. at Red

Bank was unjustified and unlawful under these laws, that L.H. is entitled to return to the

regular education classroom as his least restrictive environment, with appropriate

supports and modifications without being held to the standard of a non-disabled

student; and HCDE should be enjoined in the future from using a standard of

performance for L.H. which is inconsistent with the Courts findings. Additionally, in the

Courts discretion, it may include other appropriate equitable or declarative relief. 1

1 Plaintiffs have not addressed the matter of costs and attorneys fees here because Fed
R.Civ. P 54(d) says a motion should be filed fourteen (14) days after judgment.

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 Respectfully submitted,

GILBERT McWHERTER
SCOTT & BOBBITT, PLC

s/Justin S. Gilbert
Justin S. Gilbert (TN Bar No. 017079)
200 W. Martin Luther King Blvd,
Suite 1067
Chattanooga, TN 37402
Telephone: 423-499-3044
Facsimile: 731-664-1540
jgilbert@gilbertfirm.com

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that a true and exact copy of the foregoing
has been mailed electronically via the Courts electronic filing system, to all counsel of
record, on this the 24th day of July, 2017.

D. Scott Bennett
Mary DeCamp
Leitner, Williams, Dooley & Napolitan, PLLC
Tallan Building, Suite 500
200 West M.L. King Blvd.
Chattanooga, TN 37402

/s/ Justin S. Gilbert____

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