                      IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON

                                                                        FILED
                                                                        October 29, 1997
JOSEPH ROGERS, BY AND        )
THROUGH HIS MOTHER AND NEXT )
                                                                    Cecil Crowson, Jr.
FRIEND, JUDY LONG,          )                                           Appellate C ourt Clerk
                            )
     Plaintiff/Appellant,   )               Shelby Law No. 65673 T.D.
                            )
vs.                         )
                            )               Appeal No. 02A01-9604-CV-00066
MEMPHIS CITY SCHOOLS,       )
                            )
     Defendant/ Appellee.   )
                            )


               APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                           AT MEMPHIS, TENNESSEE



                   THE HONORABLE JAMES E. SWEARENGEN, JUDGE



For the Plaintiff/Appellant:         For the Defendant/Appellee:
William G. Hardwick, II              Ernest G. Kelly, Jr.
Memphis, Tennessee                   Memphis, Tennessee


                                     AFFIRMED


                                     HOLLY KIRBY LILLARD, J.


CONCUR:


ALAN E. HIGHERS, J.


DAVID R. FARMER, J.
                                            OPINION

       The plaintiff in this case asserts a claim under the Tennessee Governmental Tort Liability

Act. In the complaint, the plaintiff alleged that the Memphis City Schools failed to provide special

education services as required by federal law, and that this failure constituted negligence under the

Act. The trial court dismissed the case for lack of subject matter jurisdiction. We affirm the

dismissal on other grounds.

       Plaintiff/Appellant Joseph Rogers (“Rogers”) was a student in the Memphis City Schools

(“Memphis”) during the 1992-93 and 1993-94 academic years. Rogers’ mother, Judy Long

(“Long”), alleged that she made repeated requests that Rogers be placed in special education classes

during the 1992-93 school year. These requests were not granted. In October and November of

1993, Memphis placed Rogers in special education classes, but for the most part Rogers remained

in a general education program.

       Long alleged that in May of 1994, Memphis school officials held meetings to prepare an

Individualized Education Plan (“IEP”), pursuant to the Individuals with Disabilities Education Act,

20 U. S. C. §§ 1400 to 1491o1 Long asserted that she was not given proper notice of the meeting, nor

of her right to appeal decisions regarding the IEP. Thereafter, Long and Rogers moved to

Pennsylvania and Rogers withdrew as a student in the Memphis City School System.

       Long filed this Complaint on Rogers’ behalf. The lawsuit was filed in the Shelby County

Circuit Court under the Tennessee Governmental Tort Liability Act (“TGTLA”), Tenn. Code Ann.

§§ 29-20-101 to 29-20-407 (1980 & Supp. 1996). In the Complaint, Rogers alleged that Memphis

failed to follow the procedures required by federal law for providing special education services, and

that this constituted negligence per se under the TGTLA. Rogers sought damages for pain and

suffering, as well as loss of educational opportunities and other damages. Memphis filed a motion

to dismiss for failure to state a claim upon which relief could be granted, claiming that the TGTLA

does not allow suits for “educational malpractice,” that the exceptions to liability in the TGTLA

applied, that Rogers failed to exhaust his administrative remedies, 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.



       1
        Some of Congress’ most recent additions to the IDEA can be found at 20 U.S.C.
§§ 1491 - 1491o. The IDEA was previously known as the Education of the Handicapped Act and
the Education for All Handicapped Children Act.
       On appeal, Rogers contends that the trial court erred in dismissing the Complaint for lack of

subject matter jurisdiction. The issue of subject matter jurisdiction is a question of law, and our

review is de novo with no presumption of correctness. See Jonesboro Drywall & Plaster Co. v.

Kirby, No. 03A01-9508-CH-00276, 1995 WL 697901, at *1 (Tenn. App. Nov. 28, 1995) (citing

Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)).

       Rogers notes that a violation of federal and state regulations 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 occupational safety and health statutes constitutes

negligence per se). In this case, Rogers claims that Memphis was negligent under the Individuals

with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1491 (1994), as well as the special

education laws in Tennessee, Tenn. Code Ann. §§ 49-10-101 to 49-10-1203 (1996). These duties

purportedly included holding a hearing to prepare an IEP for Rogers, notifying Rogers’ parent, and

scheduling tests to assess Rogers’ special education needs. Thus, Rogers argues that he has a

negligence claim for violations of federal and state law under the TGTLA and that the trial court

erred in dismissing his claim for lack of subject matter jurisdiction.

        If Rogers states an actionable claim under the TGTLA, then the trial court would have subject

matter jurisdiction over this cause. See Tenn. Code Ann. § 29-20-307 (1996). Thus, we must

determine whether Rogers may assert a claim under the TGTLA for alleged violations of the IDEA

and the Tennessee special education laws. This issue is one of first impression in Tennessee.

        Congress enacted the IDEA “to assure that all children with disabilities have available to

them . . . a free appropriate public education.” 20 U.S.C. § 1400(c) (1994). To accomplish this goal,

the IDEA provides federal funding to states who meet certain requirements. Id. § 1412. Among

other requirements, states must establish procedural safeguards. Id. § 1412(5). These safeguards

include informing the parent or guardian of all procedures available and providing a due process

hearing when a parent or guardian complains that his or her child 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 “identification, evaluation, or educational placement of the child,

or the provision of free appropriate public education to such child.” Id. § 1415(b)(1)(E). These

administrative remedies must be exhausted before a plaintiff may file suit in federal or state court



                                                   2
under the IDEA. See id. § 1415(e) (providing that only parties aggrieved by an administrative

decision may bring a civil action).

       To implement the IDEA, Tennessee enacted its own special education statutes. See Tenn.

Code Ann. §§ 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 administrative review. Id. § 46-10-

601. As required by the IDEA, plaintiffs must exhaust their administrative remedies before

appealing an administrative decision to either federal or state court. See Crocker v. Tennessee

Secondary Sch. Athletic Ass’n, 873 F.2d 933, 936 (6th Cir. 1989) (dismissing parents’ IDEA 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 Supreme Court considered whether plaintiffs who sued to secure a “free appropriate public

education” for a child with disabilities under the IDEA could recover attorney’s fees. Id. at 994, 104

S. Ct. at 3459. At that time, the IDEA did not provide for the award of attorney’s fees, but the

plaintiffs had asserted other legal theories for which attorney’s fees could be awarded. Id. The Court

noted that the IDEA is a comprehensive scheme and stated that a plaintiff may not “circumvent the

requirements or supplement the remedies” provided under the IDEA by resorting to other legal

theories. Id. at 1019, 104 S. Ct. at 3472. The Court therefore held that the IDEA is the exclusive

avenue for a child asserting the right to a free appropriate public education, and that the plaintiffs

could not recover attorney’s fees under the other legal theories that provided for such an award.2 Id.

at 1021, 104 S. Ct. at 3473.

       Subsequent cases construing Smith have held that pendent state law claims are barred

because the IDEA provides the exclusive remedy for a child 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 “state law cannot provide a separate basis for relief via a pendent state claim”), aff’d

sub nom. Burlington Sch. Committee v. Department of Educ., 471 U.S. 359, 105 S. Ct. 1996, 85

L. Ed. 2d 385 (1985); Barwacz v. Michigan Dept. of Educ., 674 F. Supp. 1296, 1308 (W.D. Mich.




       2
          The IDEA was amended 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
1987) (dismissing plaintiff’s state law claims for denial of special education services for failure to

state a claim upon which relief could be granted).

        State courts in other jurisdictions have also held that plaintiffs cannot circumvent the

administrative procedures required under the IDEA by pursuing an independent claim under state

law. In Jenkins v. Carney-Nadeau Public Sch., 505 N.W.2d 893 (Mich. App. 1993), a student with

disabilities sued her school system under Michigan’s state handicap discrimination statute. Id. The

trial court in that case dismissed the lawsuit 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 were

included in her IEP as required by the IDEA. Id. at 894. Instead of following administrative

procedures to challenge that plan, the student went directly to court and filed suit under the state

handicap discrimination laws. Id. The court noted first that specific statutes prevail over general

ones. It reasoned that, because 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 IDEA 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 plaintiff may not recover damages for pain and

suffering because the IDEA does not provide for such damages.               In Kelly K. v. Town of

Framingham, 633 N.E.2d 414 (Mass. Ct. App. 1994), the parents 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. Citing 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 remedies

provided in the IDEA are exclusive. Id. at 418. The court noted that IDEA does not provide for

damages for pain and suffering. It held that the plaintiff could not recover such damages by resorting

to other legal theories. Id.

        In another decision, Crocker v. Tennessee Secondary Sch. Athletic Ass’n, 980 F.2d 382 (6th

Cir. 1992), a student with learning disabilities sought to recover compensatory and punitive damages

for a violation of the IDEA. Id. at 385. The court noted that the only monetary damages a plaintiff

could recover under the IDEA were reimbursement expenses for the costs of providing educational

                                                   4
services for the child. Id. at 386. Consequently, the court held that the student could not recover

general damages for emotional anguish under the IDEA. Id.

       In this case, Rogers seeks to recover money damages for pain and suffering under the

TGTLA when those damages are not available under 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

remedies” in the IDEA by resorting 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]tate law cannot

provide a separate basis for relief via a pendent state claim”). Therefore, under Smith, Rogers is

limited to the remedies provided in the IDEA and cannot supplement those remedies by resorting

to a claim under the TGTLA for alleged violations of the IDEA.

       Because the IDEA is the exclusive remedy for a child with disabilities asserting the right to

a free appropriate public education, Rogers has failed to state a claim under the TGTLA. Although

the trial court dismissed the complaint for lack of subject matter jurisdiction, this Court can affirm

a trial court on different grounds when the trial court reached the correct result. See Continental Cas.

Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986). Therefore, we affirm the trial court’s decision to

dismiss the complaint. All other issues raised by the parties are pretermitted by this holding.

       The decision of the trial court is affirmed. Costs are taxed to Appellant, for which execution

may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.


CONCUR:



ALAN E. HIGHERS, J.




DAVID R. FARMER, J.




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