I.L. ex rel. Taylor v. Knox County Board of Education (257 F. Supp. 3d 946, 2017)

United States District Court for the Eastern District of Tennessee 2017-06-15

Education Labor The Public Health and Welfare

Citations

Full opinion text

Memorandum Opinion and Order

PAMELA L. REEVES, UNITED STATES DISTRICT JUDGE

“Nothing about this case is typical.” Hr’g Tr. at 980:13-14. It involves a daughter with Down syndrome and her mother. It involves the mother’s efforts to integrate her daughter into public school, the schools’ efforts to honor the mother’s efforts, and the state’s response to how its schools treat disabled students. It involves the Individuals with Disabilities Education Act, the Americans with Disabilities Act, the Rehabilitation Act, and the Tennessee Special Education Behavioral Supports Act. It involves a 3000-page administrative record from the state. And it involves ten motions that have been filed over the past thirteen months. They are as follows:

1. the Tennessee Department of Education’s motion to dismiss;

2. the Department’s motion for summary judgment;

3. Plaintiffs’ motion for partial summary judgment against the Department;

4. the Department’s countermotion for summary judgment;

5. Plaintiffs’ motion to admit the Department of Education’s answer to an interrogatory showing a violation of the Special Education Behavioral Supports Act;

6. Knox County Sehools’s motion to strike the interrogatory answer;

7. Plaintiffs’ motion for judgment on the administrative record;

8. Knox County Schools’s motion for judgment on the administrative record;

9. the Department’s motion to stay this case until the Court rules on the pending motions; and

10. Defendants’ motion to continue trial.

And for the reasons stated below, the Court orders as follows:

1. the Department’s motion to dismiss is granted in part and denied in part;

2. the Department’s motion for summary judgment is granted;

3. Plaintiffs’ motion for partial summary judgment is denied;

4. the Department’s countermotion for summary judgment is denied as moot;

5. Plaintiffs’ motion to admit the Department’s answer to an interrogatory is denied;

6. Knox County Schools’s motion to strike is denied as moot;

7. the motions for judgment on the administrative record are granted in favor of Knox County Schools on the IDEA claims and in favor of Taylor on the IDEA — Supports Act claim, and the Court orders remedies;

8. the Department’s motion to stay is denied as moot; and

9. Defendants’ motion to continue is granted.

Table of Contents

I. Background... 953

A. Legal... 953

1. Individuals with Disabilities Education Act.. .953

2. Americans with Disabilities Act Title II, Rehabilitation Act § 504... 954

3. Special Education Behavioral Supports Act... 955

B. Factual... 955

1. Facts... 955

2. Procedural History.. .956

II. The Department of Education’s Motion to Dismiss... 957

A. Legal Standard.. .957

B. The Department’s Arguments ...957

1. Taylor Need Not Exhaust Administrative Remedies... 957

2. Substantive Arguments... 959

i. Taylor Has Not Stated an IDEA Claim for Grievance-Procedure Interference. . .960

ii. Taylor Has Stated a Claim for Violating the IDEA Through the Supports Act... 963

iii. Taylor Has Stated a Claim Under Title II and § 504... 964

III. The Department’s Motion for Summary Judgment...969

A. Legal Standard... 969

B. The Department’s Arguments ...970

1. Taylor Need Not Exhaust Administrative Remedies... 970

2. Substantive Arguments... 970

i. Taylor Has Not Shown a Genuine Dispute on Her Least-Restrictive-Environment Claims... 970

ii. Taylor Has Not Shown a Genuine Dispute on Her Supports Act Claims... 973

iii. Taylor Has Not Shown a Genuine Dispute on Her Title II and § 504 Claim.. .974

IV. Plaintiffs’ Motion for Partial Summary Judgment Is Denied.. .975

V. The Department’s Countermotion for Summary Judgment Is Denied as Moot... 975

VI. Plaintiffs’ Motion to Admit an Answer to an Interrogatory Is Denied... 975

VII. Motions for Judgment on the Administrative Record... 976

A. Facts... 976

B. Legal Standard... 979

C. Arguments... 979

1. Knox County Schools Committed No Procedural IDEA Violations... 979

i. The District Had No Duty to Try Behavioral Supports or Place I.L. in a Resource Room... 979

ii. The Lack of a Consistent Paraprofessional Did Not Violate the IDEA... 980

iii. The Failure to Implement the 13 Goals Did Not Deny I.L. a FAPE... 981

iv. I.L.’s Teachers Taught to the West Hills IEP, Which Was Not Defective for Lack of Behavioral Supports. . .984

v. Brickey-McCloud Staff Did Not Measure I.L.’s Progress by an Improper Standard...986

2. Knox County Schools Committed No Substantive IDEA Violations... 986

3. Knox County Schools Violated the Supports Act.. .990

D. Remedies.. .994

VIII. The Department’s Motion to Stay Is Denied as Moot.. .994

IX. Defendants’ Motion to Continue Trial Is Granted... 994

X. Conclusion... 995

I

A

This case involves three federal laws and one state law. They are complex and chocked full of jargon, so a survey of these laws will help. See, e.g., Transcript of Oral Argument at 47:6-8, Endrew F. v. Douglas Cty. Sch. Dist. RE-1, — U.S. —, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017) (No. 70-18) (Alito, J.) (remarking that the Individuals with Disabilities Education Act is “frustrating” because it involves a “blizzard of words”).

1

In 1954, the Supreme Court declared that “education is perhaps the most important function of state and local government.” Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954). But in 1975, Congress found that state and local governments were not providing a proper education to disabled children. Honig v. Doe, 484 U.S. 305, 309, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); see also 20 U.S.C. § 1400(c)(2). So it passed what is now the Individuals with Disabilities Education Act, or IDEA. 20 U.S.C. §§ 1400-1491o. The IDEA’S goal is to provide all disabled children with a free appropriate public education, or a FAPE. See id. § 1412(a)(1).

A FAPE has four parts. Two are relevant here. First, the school must provide the FAPE “in conformity with the individualized education program required under section 1414(d) of this title.” Id. § 1401 (9)(D). The individual education program — or IEP — is “the centerpiece of the statute’s education delivery system for disabled children.” Honig, 484 U.S. at 311, 108 S.Ct. 592. The IEP includes the child’s functionality, her current academic performance, her academic goals, how to measure academic progress, and what accommodations she needs. 20 U.S.C. § 1414(d)(l)(A)(i). A team of school officials, teachers, and the child’s parents work together to form the IEP. Id. § 1414(d)(1)(B).

Second, the FAPE must “meet the standards of the State educational agency.” Id. § 1401(9)(B). Here, the state educational agency is the Tennessee Department of Education. The Department must craft a plan that, among other things, allows all disabled children to receive a FAPE in the least-restrictive environment. Id, § 1412(a)(1), (5). The Department must then supervise its school districts — or local educational agencies — to ensure that they follow this plan. Id, § 1412(a)(ll).

The Department must also provide an administrative grievance procedure for disabled children and their parents. Id. §§ 1412(a)(6), 1415. This procedure is meant to be a faster, cheaper alternative to litigation. It has several steps. First, the parent may file a complaint on any FAPE-related matter with the school district or the state educational agency. Id, § 1415(b)(6). The district or agency then investigates the matter if needed and responds accordingly. 34 C.F.R. § 300.152. Meanwhile, the school convenes a preliminary meeting between the parents, school officials,'and the child’s IEP team. -20 U.S.O. § 1415(f)(l)(B)(i); 34 C.F.R. § 300.510.

If the preliminary meeting fails to resolve the conflict, then the parties may proceed to mediation. 20 U.S.C. § 1415(e); 34 C.F.R. § 300.506, Mediation is voluntary. -20 U.S.C. '§ 1415(e)(2)(A)®. An impartial mediator leads each session, and each session must happen in a timely manner at a place convenient for the parties. Id. § 1415(e)(2)(E). The state bears1-the full cost of mediation. Id, § 1415(e)(2)(D).

If mediation fails, or if the parties choose not to mediate, then a party may file a due-process complaint and have a due-process hearing. 20 U.S.C. § 1415(b)(7)(A), (f); 34 C.F.R. § 300.514. An administrative law judge conducts the hearing, under the authority of either the school district or the state educational agency. 34 C.F.R. § 300.511(b)-(c). The ALJ’s decision is final. Id. § 300.514(a). But if the ALJ acted under the school district’s authority, then the parties may appeal to the state educational agency for another due-process hearing. 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1). The state due-process hearing is the end of the IDEA’S grievance procedure.

The IDEA requires that state educational agencies set up this three-step grievance procedure — complaint resolution, mediation, and due-process hearings. 34 C.F.R. § 300.500. The Tennessee government and the Department of Education have done so. See Tenn. Code Ann. §§.49-10-604 to - 606; Tenn. Comp. R. & Regs. 0520-01-09-.01, -.17, -.18. State educational agencies must also ensure that school districts implement the grievance procedure and tell parents about . it. 34 C.F.R. §§ 300.149(a)(1), 300.504. Whether the Department has done so is disputed.

Once the state ALJ issues a decision, the parties may sue in federal court. 20 U.S.C. § 1415(i)(2)(A); 34 C.F.R. §§ 300.514(a), 300.516. But a suit cannot be filed until a state ALJ has issued a decision — that is, until the parties have reached the end of the IDEA’S grievance procedure. 20 U.S.C. § 1415(i)(2)(A). This is known as the IDEA’S exhaustion rule. Fry v. Napoleon Cmty. Schs., — U.S. —, 137 S.Ct. 743, 753, 197 L.Ed.2d 46 (2017). The rule applies only to claims alleging the denial of a FAPE. Id,

2

The IDEA’S grievance procedure is not limited to IDEA claims. If it were, parties could side-step it by simply suing under a different law. Id. at 765. So claims that could have been brought under the IDEA but weren’t must still go through the IDEA’S grievance procedure before ‘ a court can hear them.'20 U.S.C. § 1415(¿). The exhaustion rule also applies to these claims. Id, Some claims can be brought under the IDEA, the Americans with Disabilities Act, and the Rehabilitation Act. Fry, 137 S.Ct. at 750.

Title II of the Americans with Disabilities Act bars public entities from discriminating against people “by reason of’ their disabilities. 42 U.S.C. § 12132.. This includes public schools. See, .e.g., Fry, 137 S.Ct. at 756, And.under § 504 of the Rehabilitation Act, no one “solely by reason” of her disability can be excluded from a program receiving federal funds. 29 U.S.C. § 794(a). Through the IDEA, public schools receive federal funds in exchange for enacting and enforcing policies to ensure that disabled students receive a FAPE. 20 U.S.C. § 1413(a). Public schools are thus covered by § 504. See Fry, 137 S.Ct. at 756. So conduct by school staff can violate the IDEA, Title II, and § 504 all at once. See id.

3

The IDEA also incorporates state law. See, e.g., 20 U.S.C. § 1412(a)(15)(A). Indeed, a FAPE must “meet the standards of the state educational agency.” Id. § 1401(9)(B). Thus, even if a school district complies with federal law, it can still run afoul of the IDEA by violating state law. Doe ex rel. Doe v. Bd. of Educ. of Tullahoma City Schs., 9 F.3d 455, 457 (6th Cir. 1993).

Tennessee has a. statutory scheme meant to provide “special education services sufficient to meet the needs and maximize the capabilities of children with disabilities.” Tenn, Code Ann. § 49-10-101(a)(1). Part of that scheme is the Special Education 'Behavioral Supports Act. Id. §§ 49-10-1301 to -1307. The Act outlines when and how school staff may isolate or restrain a disabled student. Id. § 49-10-1304. So here, there is a large overlap among the IDEA, Title II, § 504, and Supports Act claims.

B

1

I.L. is a child with Down syndrome. Donna Taylor is her mother. I.L. is “disabled” under federal law and needs accommodations at school. Her public-school district is Knox County Schools, which is under the Tennessee Department of Education. When I.L. started preschool in 2007, Taylor tried to “mainstream” her daughter into the regular-education class so that I.L. could receive the benefits of being around her nondisabled peers. The District, however, insisted on more accommodations for I.L; than Taylor thought appropriate. Taylor pulled I.L. out of school.

This pattern continued for several years: Taylor would enroll I.L. in public school, the school would insist on more accommodations, and Taylor would disagree and pull I.L. In 2012,1.L. enrolled in homeschooling through the Tennessee Virtual Academy. The Virtual Academy and Taylor formed an IEP for I.L. With this IEP in hand, Taylor returned to Knox County Schools. She enrolled I.L. in third grade at West Hills -Elementary School, and West Hills officials adopted I.L.’s IEP with minor adjustments. West Hills staff, however, did not follow the IEP to Taylor’s liking. So Taylor transferred I.L. to Brick-ey-McCloud Elementary School.

Taylor - insisted that a new IEP be formed before I.L. started at Brickey-McCloud. Taylor, West Hills officials, and Brickey-McCloud officials worked over several weeks to hammer out a new IEP. They agreed to revise the standards for measuring I.L.’s progress. But they reached a roadblock on the method of satisfying those standards: Taylor maintained that I.L. could achieve them with only 20 minutes of special education a day, while school officials felt that four hours a day was needed. No new IEP was reached. I.L. continued to be taught under her old IEP.

This time, Taylor sought legal relief. But she did not go through the IDEA’S complaint-resolution process. Apparently, a lawyer for the Department of Education had written a letter to the person who would later become Taylor’s advisor and I.L.’s advocate. This letter claimed that the complaint-resolution process was meant to address only the procedural aspects of how a school implemented a student’s IEP. It was not meant to substantively determine if a student’s IEP was actually providing her with a FAPE. So when Taylor wanted to lodge substantive claims against Knox County Schools, this advisor told her not to bother with complaint resolution. Taylor thus skipped ahead and filed a due-process complaint against Knox County Schools on November 17, 2014.

Meanwhile, I.L. started third grade at Brickey-McCloud. But her experience there was no better. Staff used strategies to distract I.L. that aggravated her behavioral issues. There was also a frequent turnover in the staff assigned to I.L. As these practices continued, I.L.’s behavior worsened. IEP meetings followed in January and February 2015, but all they ended in were tears.

In August 2015, I.L. started fourth grade at Brickey-McCloud. What also started was the practice of “fencing” I.L. when she would become especially agitated. Staff would walk I.L. out of the classroom to an alcove in the hallway. They would then take a blue gym mat and close off the alcove with I.L. inside. This created a 4’ x 4’ area, where I.L. would sit until she calmed down. Over four days in August, 1.L. was isolated twenty-one times totaling four hours. But no one told Taylor about this practice until an IEP meeting on August 18. Taylor reacted by pulling I.L. out of school the next day. The day after that she filed a second due-process complaint against Knox County Schools.

2

The state administrative law judge consolidated the two due-process complaints, held hearings, and issued a final order on November 16, 2015. The ALJ ruled for Knox County Schools on the first due-process complaint. Taylor had failed to show, he held, that the IEP proposed by the District would not provide I.L. with a FAPE. The ALJ ordered that the District implement its IEP immediately.

But the ALJ ruled for Taylor on the second complaint, deeming the gym-mat fencings improper under the Supports Act. He ordered Knox County Schools to stop the fencings and give I.L. four makeup days of education. He also barred a special-education expert at Brickey-McCloud from having contact with I.L.

This suit followed on December 17, 2015, with a complaint from Taylor and a coun-tercomplaint from Defendants. Taylor filed an amended complaint in June 16. She named as defendants the Tennessee Department of Education, Knox County and Knox County Schools, and three school officials. In January 2017, the Court granted Taylor’s request to dismiss some of her claims, including all claims against the school officials.

Several claims against the District and the Department remain. First, she alleges that they violated the IDEA by denying her the complaint-resolution process; by deciding that I.L. needed a more-restrictive environment before consulting Taylor; by denying I.L. an education in the least-restrictive environment; and by denying I.L. a FAPE. Second, she contends that the Department systemically violated the IDEA by letting school staff violate the Supports Act unchecked. Third, Taylor asserts that the Department and the District discriminated against I.L. because she is disabled, in violation of Title II and § 504. Fourth, Taylor argues that the District’s counterclaim is retaliation for winning on her first due-process complaint, in violation of the First Amendment. Last, Taylor alleges that the District’s use of gym-mat fencings amounts to negligence, gross negligence, negligence per se, and false imprisonment.

Between May 2016 and April 2017, the parties filed ten motions that are still pending. The Court will address them now.

II

First is the Department of Education’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Department claims that, because Taylor did not name it as a defendant in the state administrative proceedings, she has failed to exhaust her administrative remedies against it. It also asserts that, even if Taylor exhausted her remedies, she has not stated a claim. For the following reasons, the Court will dismiss Taylor’s IDEA grievance-procedure claim, deny the Department’s motion on the IDEA — Supports Act claim, and deny the motion on the Title II and § 504 claim.

A

To survive a motion to dismiss under Rule 12(b)(6), the complaint must state a facially plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To determine whether the complaint states a facially plausible claim, the Court takes a two-step approach. Id. at 679, 129 S.Ct. 1937. First, it separates the complaint’s factual allegations from its legal conclusions. All factual allegations, and only the factual allegations, are taken as time. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Second, the Court asks whether these factual allegations amount to - a plausible claim for relief. Id. at 555, 127 S.Ct. 1955. The allegations do not need to be highly detailed, but they must do more than simply recite the elements of the offense. Id. Specifically, the complaint must plead facts permitting a reasonable inference that the defendant is liable for the alleged conduct. Id. If this is not done, 'the claim will be dismissed. Id. at 570, 127 S.Ct. 1955.

B

1

The Department contends that Taylor’s -claim must fail because she has not exhausted the IDEA’S grievance procedure. When Taylor filed due-process complaints against Knox- County Schools, she did not name the Department as a defendant. Thus, the Department concludes, Taylor cannot now sue it.

The Court disagrees. The text, structure, and history of the IDEA’S grievance procedure reveal that the only intended parties to a due-process hearing are the child, the parents, and the school district. The IDEA provides that, after the complaint-resolution process, “the parents or the local educational agency involved in such a complaint shall have the opportunity, for an impartial due process hearing.” 20 U.SC. § 1415(f)(1)(A). The party requesting a hearing must forward a copy of the due-process complaint to the state educational agency. Id. § 1415(b)(7)(A)®. The IDEA’S due-process text implies that the state educational agency will not be a party to the due-process hearing.

The same conclusion follows from the structure of the IDEA’S grievance procedure. The first step is filing a complaint. Id. §■ 1415(b)(6). While § 1415(b)(6) states only that there must be á chance for “any party” to file a complaint, § 1415 later describes the parties involved in the complaint as “the .parents or the local educational agency involved.” Id. ¾ 1415(f)(1)(A).

If complaint resolution fails, then the parties can mediate. Id. § 1415(e). If mediation fails or the parties decline mediation, then the dispute moves to the due-process hearing. Id. § 1415(f). But before the hearing, “the local education agency” must convene a meeting with the parents and the IEP team. Id. § 1415(f)(B)(i). At this meeting, “the local educational agency” must have a chance to resolve the complaint. Id. § 1415(f)(l)(B)(i)(IV).

“If the local educational agency has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur....” Id. § 1415(f)(l)(B)(ii). The hearing may be conducted by the local agency (the school district) or the state agency. Id. § 1415(f)(1)(A). But since the local agency might be a party, decisions from a local due-process hearing are ap-pealable to the state agency. Id. § 1415(g)(1). Decisions from a state due-process hearing are not appealable. Id. § 1415(i)(2)(A). Instead, the only option is a lawsuit. Id.

Thus, the IDEA’S grievance procedure is concerned only with how the child, the parents, and the school district will resolve disputes. The state educational agency has one main job: to act as a neutral third party who holds due-process hearings. And the inability' to appeal from state hearings reveals that there is no risk of the state agency being impartial, since it is not a party. The structure of the IDEA’S grievance procedure implies that state educational agencies were not meant to be parties to due-process hearings.

The IDEA’S legislative history, further supports this reading. In 2004, the IDEA was revised in two relevant ways. First, the due-process provisions were amended “to clarify that a parent, as well as a local educational agency, has an opportunity to have a due process hearing after filing a complaint.” S. Rep. No. 108-185, at 37 (2003). Congress wanted to leave no doubt that school districts' — not just parents— may request due-process hearings. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (citing S. Rep. No. 108-185, at 37).

Second, the preliminary-hearing provisions were added. “The goal of these provisions is fairness: to be sure that a district is aware of a problem and has a chance to resolve it in a less formal manner before having to spend the time and resources for a due process hearing.” S. Rep. No. 108-185, at 39. In other words, these provisions were added to spare parents and school districts from due-process hearings. The text, structure, and history of the IDEA’S grievance procedure thus reveal that state educational agencies were not meant to be parties to due-process hearings. Taylor did not have to name the Department of Education as a defendant in her due-process complaints.

The Department insists that “without an administrative hearing, [it] is unaware of the facts concerning a student’s complaint until a lawsuit has been filed.” [D. 29 at 11]. This argument ignores the text of federal and state law. When someone files a complaint to start the complaint-resolution process, she must provide a copy to the Department. 34 C.F.R. § 300.151(a)(l)(i). Once the Department receives the complaint, it “shall promptly investigate” and,. if necessary, issue written findings to the parent.and school district. Tenn. Code Ann. § 49-10-604(2)-(3); see also 34 C.F.R. § 300.152(a). And when the due-process complaint is finally filed, a copy must be sent to the Department. 34 C.F.R. § 300.508(a)(2). The Department then holds a due-process hearing, Tenn. Code Ann. § 49-10-606(a); 34 C.F.R. § 300.511(b). Once the hearing is over— whether or not the ALJ has issued a ruling yet — the Department can address the issues raised in the complaint. 34 C.F.R. § 300.152(c)(1). Without an administrative hearing, the Department is twice made aware of the facts concerning a student’s complaint before a lawsuit has been filed.

The Department also cites the Fifth Circuit’s decision in Papania-Jones v. Dupree, 275 Fed.Appx. 301 (5th Cir. 2008) (per curiam). In Papania-Jones, the court upheld the dismissal of an IDEA claim against a state agency. Id at 304. It did so because the plaintiffs had not filed a due-process complaint and so had failed ,to exhaust the IDEA’S grievance procedure. Id. The Department cites this decision as evidence that state agencies can be defendants to due-process hearings.

There are several problems with this argument. True, the court in Papania-Jones did require a due-process hearing against a state educational agency. But in that case, no one argued whether state agencies were proper parties to due-process hearings. The court had no need to address the issue.

And there is a deeper problem with the reasoning in Papania-Jones, In that case, the child was part of a state program managed by the state department of health and authorized by Subchapter III of the IDEA. Id. at 302; see Tucker ex rel. Tucker v. Calloway Cty. Bd. of Educ., 136 F.3d 495, 500 n.18 (6th Cir. 1998). Sub-chapter III concerns disabled infants and toddlers. 20 U.S.C. § 1431(a). It provides for a single statewide system of administration headed by a state agency. Id. § 1435(a)(10). And if disputes arise, Sub-' chapter III has its own grievance procedure. Id. § 1439; 34 C.F.R. §§ 303.430-303.449. So when parents of a disabled infant seek a due-process hearing, the only possible defendant is the state agency. Thus, in Papania-Jones, the only possible defendant was the state agency.

To be sure, the Papania-Jones court did not cite anything in Subchapter III. Instead, it concerned itself only with the grievance , procedure at issue in this ’suit. But this procedure comes from Subchapter II of the IDEA, which addresses only disputes about a disabled child’s school placement or education. 20 U.S.C. § 1415(b)(6)(A). Infants and toddlers are people under three years old. Id. § 1432(5)(A). They have no need for formal education, much less a need for due-process hearings about, school placement or education. See id. §§ 1431(a)(2), 1411(a)(2)(B)(i)(I). So it is unclear why the Papania-Jones court addressed the Sub-chapter II grievance procedure, rather than its Subchapter III counterpart. Maybe it’s because states can adopt the Subchapter II procedure for ■ Subchapter III disputes. 34 C.F.R. § 303.430(d)(2). Or maybe it’s because Subchapter III funds can be used to provide a FAPE to children from their third birthday’ to the start' of the next school year. 20 U.S.C. § 1483(3). ■Regardless, the court’s reasoning is unclear. Papania-Jones has- no persuasive power here. When a child is taught by . a local educational agency, parents are not required to name the state educational agency as a party in the administrative proceedings. Taylor did not have to exhaust her administrative remedies against the Department before suing it,

.2

The Department next’ contends that Taylor’s claims against it "should be’dismissed. Taylor alleges that "the Department violated the IDEA by interfering with her right to the complaint-resolution process, violated the Supports Act, and ■violated Title II of: the Americans with Disabilities Act and § 504 of the Rehabilitation Act. Only the first claim will be dismissed.

(i) Taylor Has Not Stated an IDEA Claim of Grievance-Procedure Interference

First, Taylor claims that the Department of Education violated the IDEA by interfering with her right to use the IDEA’S complaint-resolution process. As she described, a Department attorney sent a letter to the person who would later become Taylor’s advisor and LL.’s advocate. The letter wrongly explained that the complaint-resolution process was meant only for procedural denials of a FAPE, not substantive denials. So when Taylor sought to bring substantive claims against Knox County Schools, the advocate advised Taylor to skip ahead to a due-process hearing. Due-process hearings are costlier and more time-consuming than the complaint-resolution process. Taylor alleges that this interference with her right to use the IDEA’S grievance procedure cost her time and money. She is bringing this claim under the IDEA itself.

Claims of IDEA grievance-procedure interference, however, cannot be brought under the IDEA, because the IDEA contains no private right of action for grievance-procedure interference. Private rights of action can be express or implied. The IDEA has no express private right of action for grievance-procedure interference. “An express federal cause of action states, in so many words, that the law permits a claimant to bring a claim in federal court.” Traverse Bay Area Inter. Sch. Dist. v. Mich. Dep’t of Educ., 615 F.3d 622, 627 (6th Cir. 2010) (internal quotation marks omitted). For instance, when a state seriously fails to follow the IDEA, the U.S. Secretary of Education can “refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.” 20 U.S.C. § 1416(e)(2)(B)(vi) (cleaned up). No equivalent exists for parents and children. See id. § 1415. No express right of action exists to sue under the IDEA for grievance-procedure interference.

To be sure, this conclusion contradicts the Third Circuit’s decision in Beth V. ex rel. Yvonne v. Carroll, 87 F.3d 80 (3d Cir. 1996). In Beth V., the court held that the text of § 1415 expressly allows parents to sue when they are boxed out of the IDEA’S grievance procedure. Id. at 88. It based its holding on two reasons. Neither, however, is persuasive.

First, the Beth V. court looked to § 1415’s text. It noted that, when someone files a complaint, she may take her complaint all the way through the grievance process and then sue. Id. at 86. A complaint can be filed on “any matter” related to a child’s placement or education. Id. at 85 (quoting now-20 U.S.C. § 1415(b)(6)). And a state’s interference with the IDEA’S grievance procedure is “any matter” related to a child’s placement or education. Id. at 86. Thus, under § 1415’s text, grievance-procedure interference can be grounds to sue.

The Supreme Court has since invalidated the third step in this reasoning. As the Beth V. court noted, the IDEA’S grievance procedure applies to “any matter” related to a child’s placement or education. 20 U.S.C. § 1415(b)(6). But not only can these claims be brought through the IDEA’S grievance procedure before suing — under the IDEA’S exhaustion rule, these claims must be brought through the grievance procedure before suing. Id. § 1415(i). And in Fry v. Napoleon Com munity Schools, — U.S. —, 137 S.Ct. 743, 197 L.Ed.2d 46 (2017), the Supreme Court had to interpret the scope of this exhaustion rule.

The Court’s holding was clear: “The only relief that an IDEA officer can give— hence the thing a plaintiff must seek in order to trigger § 1415(Z)’s exhaustion rule — is the relief for the denial of a FAPE.” Id. at 753. So under the IDEA, if a claim concerns “any matter” related to a child’s placement or education, then it can be brought through the grievance procedure. 20 U.S.C. § 1415(b)(6). But under Fry, a claim can be brought through the grievance procedure only if an IDEA officer could give relief for it. The only wrong that IDEA officers can relive is the denial of a FAPE. Thus, “any matter” related to a child’s placement or education really means any matter related to the denial of a FAPE. The question is thus whether grievance-procedure interference is a matter related to the denial of a FAPE.

It is not. IDEA officers can relieve substantive and procedural violations of the IDEA. 20 U.S.C. § 1415(f)(3)(E). Substantive violations happen when a school does not provide “an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, — U.S. —, 137 S.Ct. 988, 999, 197 L.Ed.2d 335 (2017). Grievance-procedure availability is not related to whether a school provides such an IEP.

Procedural violations concern “the preparation of an IEP.” Bd. of Educ. of Hendrick Hudson Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). These include the identification, evaluation, placement, and IEP-formation procedures outlined in § 1414. The grievance procedure does not directly concern the preparation of an IEP. Indeed, the fact that the grievance procedure can be used for both substantive and procedural IDEA violations shows that grievance-procedure interference is neither. An IDEA officer would not have the power to right that wrong.

There is also a practical problem. As Fry held, whether someone must use the IDEA’S grievance procedure depends on whether an IDEA officer could offer relief. But if someone is denied all use of the grievance procedure, then she is denied an IDEA officer. Hence no officer would be able to provide relief. In other words, the IDEA’S grievance procedure might be unable to fix interference with its own use. Under Fry, a party can sue under the IDEA only for the denial of a FAPE. Grievance-procedure interference is not related to the denial of a FAPE. So Fry has invalidated the textual reasoning of Beth V.

Second, the Beth V. court looked to the IDEA’S purposes, as stated in its text. Then (as now) two of the law’s goals were (1) to protect the rights of disabled children and their parents; and (2) to ensure that all disabled children have a FAPE that can prepare them for further education, employment, and independence. 34 C.F.R. § 300.1(a)-(b); Beth V., 87 F.3d at 87; accord 20 U.S.C. § 1400(d)(l)(A)-(B). A private right to sue for grievance-procedure interference would carry out the first goal, thus ensuring that the second goal is carried out. Beth V., 87 F.3d at 87-88.

This argument does not by itself reveal an express right to sue under the IDEA for grievance-procedure interference. An express right to sue must be stated in the statute’s text. See Traverse Bay, 615 F.3d at 627-28. The Beth V. court’s second line of reasoning drew no conclusion directly from the IDEA’S text. Instead, it used this reasoning to bolster its textual reasoning. But Fry has upended the textual reasoning. And this purpose-based reasoning cannot by itself reveal an express right of action. So there is no express right to sue under the IDEA for grievance-procedure interference. Taylor’s claim will fail unless the IDEA provides an implied right to sue.

The IDEA provides no implied right to sue for grievance-procedure interference. Here, the Court must “interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Thus, Taylor’s claim will fail unless the IDEA reveals a congressional intent to create both a private right and a private remedy for interfering with the use of the IDEA^s grievance procedure.

The IDEA reveals no such intent. First, the IDEA’S text implies that there is no private right to sue. The Court will look at the text of the IDEA’S statutes but not the text of its regulations, because “a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.” Id. at 291, 121 S.Ct. 1511. And when looking at the IDEA’S statutes, the Court considers “the entire statutory- scheme.” Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 523, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007). So the Court will look at not just the IDEA’S grievance procedure in § 1415, but also the Act’s enforcement provisions.

These enforcement provisions reveal that Congress gave all grievance-procedure-protection power to the Executive Branch, with none left for private people. “The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” Sandoval, 532 U.S. at 290, 121 S.Ct. 1511. Beyond § 1415’s grievance procedure itself, enforcement of the IDEA is left to the U.S. Secretary of Education. 20 U.S.C. § 1416. This suggests that there is no implied private right to sue.

This conclusion is bolstered by the complexity of the Secretary’s enforcement system. “The sheer complexity associated with enforcing”' a federal law, “coupled with the express provision of an administrative remedy,” implies that there is no private right to sue. Armstrong v. Exceptional Child Ctr., Inc., — U.S. —, 135 S.Ct. 1378, 1385, 191 L.Ed.2d 471 (2015). The IDEA prescribes a detailed system of oversight and enforcement, which the Secretary must follow. 20 U.S.C, § 1416. And in turn, she must require the states to implement a detailed system of oversight and enforcement. Id. § 1416(a)(1)(C). Most important, the Secretary must ensure that states implement the IDEA’S grievance procedure. Id. §§ 1412(a)(ll)(A)(i), 1416(a)(l)(A)-(B). This system of oversight and enforcement suggests that the IDEA offers no private right to sue for grievance-procedure interference.

The IDEA’S constitutional basis also weighs against a private right to sue. Congress passed the IDEA under the authority of the Constitution’s Spending Clause. Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. 291, 295, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006). The IDEA gives states federal funds for special education, but only if the states agree to carry out the IDEA. And “when Congress attaches conditions to a State’s acceptance of federal funds, the conditions must be set out ‘unambiguously.’ ” Id. at 296, 126 S.Ct. 2455 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)). The IDEA is clear that, if a state accepts.federal funds, the Secretary- can sue it for not providing the grievance procedure. The IDEA is not clear that, if a state accepts federal funds, private people can sue it for not providing the grievance procedure.

And even if there were a private right to sue, Taylor would not be able to win her desired remedy. Taylor claims that she was denied the use of the state’s complaint-resolution process. She makes this claim largely because the due-process hearing, “being adversarial and requiring a hearing or trial, is far more expensive” than the complaint-resolution process. [D. 20 ¶ 52]. But no one can recover damages for IDEA, violations. Crocker v. Tenn. Secondary Sch. Athletic Ass’n, 980 F.2d 382, 386 (6th Cir. 1992). So Tayior cannot recover the cost of the due-process hearing anyway.

Finally, other district courts have ruled that the IDEA contains no private right of action, including one within the Sixth Circuit. See, e.g., T.S. v. Utica Cmty. Sch., No. 11-cv-13092, 2013 WL 5954425, at *8 (E.D. Mich. Nov. 7, 2013); Va. Office of Prot. & Advocacy v. Va. Dep’t of Educ., 262 F.Supp.2d 648, 660 (E.D. Va. 2003). The IDEA thus provides no private right to sue for interfering with the use of its grievance procedure.

To be sure, this conclusion goes against some California federal decisions. See, e.g., Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., No. 2:11-cv-3471-KJM-AC, 2013 WL 1326301, at *7-8 (E.D. Cal. Mar. 29, 2013). But these decisions are based on reasons that have no bearing here. First, they rely on the text of § 1415, just like in Beth V See id. at *7. This textual reasoning, however, was upended by Fry. Second, they rely on the Ninth Circuit’s habit of hearing appeals from the complaint-resolution process, even if there was no due-process hearing. Id. at *2. The Sixth Circuit has no such habit. The California cases are not persuasive.

One might object that this ruling leaves disabled children and their parents without a remedy. But in fact, plaintiffs can sue under § 1983 for IDEA violations. See, e.g., F.H. ex rel. Hall v. Memphis City Schs., 764 F.3d 638, 643-44 (6th Cir. 2014). Of course, the Court takes no position on whether Taylor would be able to sue under § 1983. After all, “whether a statutory violation may be enforced through § 1983 is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (internal quotation marks omitted). The point simply is that, when someone suffers a wrong under the IDEA that can’t be righted by suing under the IDEA, § 1983 might be available.

One might also object that this ruling leaves no way to sue for systemic IDEA violations. Such suits, however, are expressly allowed by the IDEA. It allows people to sue “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. § 1415(b)(6), (i)(2)(A). Plaintiffs who allege systemic violations are still suing with respect to identification, evaluation, placement, or FAPE provision. Their suits are simply on a bigger scale. See, e.g., A.G. v. Tenn. Dep’t of Educ., No. 1:16-cv-27, 2017 WL 112526, at *4-5 (M.D. Tenn. Jan. 11, 2017). The only difference with systemic allegations is that they are not subject to the exhaustion rule. Id. at *4. So parents may still sue under the IDEA for systemic violations.

According to Taylor, the Department’s letter stopped her from using the IDEA’S complaint-resolution process. That may or may not be true. But because she brought her claim under the IDEA, it must be dismissed.

(ii) Taylor Has Stated a Claim for Violating the IDEA Through the Supports Act

Taylor asserts that Knox County Schools systemically fails to follow the Supports Act, denying students a FAPE. She also asserts that the Department has a duty to make sure that school districts do not deny students a FAPE. Thus, the Department must ensure that Knox County Schools follows the Supports Act. Taylor claims that the Department of Education is breaching that duty, violating the Supports Act. The Department counters that Taylor cannot sue it in federal court for violating state law and that, even if she can, it has complied with the Act.

Taylor can sue the Department in federal court under the Supports Act. She cannot bring a standalone Supports Act claim against the Department, because it is part of the Tennessee government. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). So Taylor can sue the Department under the Act only if it is incorporated into the IDEA.

It is. If a state special-education law is more protective than the IDEA, a violation of state law can amount to a violation of the IDEA. Doe ex rel. Doe v. Bd. of Educ. of Tullahoma City Schs., 9 F.3d 455, 457 (6th Cir. 1993); see also 20 U.S.C. § 1401(9)(B). The IDEA has no specific rules about the use of isolation and restraint. The Supports Act, by contrast, “clearly creates specific obligations related to the use of isolation and restraint that go beyond the basic scope of the IDEA’S requirements. Accordingly, under Doe, these provisions are enforceable under the IDEA.” N.S. v. Tenn. Dep’t of Educ., No. 3:16-cv-610, 2016 WL 3763264, at *7 n.4 (M.D. Tenn. July 14, 2016); see also Mallory ex rel. BM v. Knox Cty. Sch. Dist., No. 3:06-cv-122, 2006 WL 3484015, at *6 (E.D. Tenn. Nov. 30, 2006) (Jordan, J.). Because the Supports Act is enforceable under the IDEA, the Department can be liable for violating it.

And Taylor has stated a plausible claim for violating the Supports Act. The Department must ensure that school districts follow the IDEA. 20 U.S.C. §§ 1412(a)(ll)(A)(i), 1414(d)(2)(A). If the Department does not do so, it may be sued. Id. § 1415(i)(2)(A). Taylor alleges that the Department has failed to enforce the Supports Act against school districts. [D. 20 ¶¶ 68-69, 85, 90]. The Supports Act is incorporated into the IDEA. So Taylor has properly alleged that the Department has violated the Supports Act.

(iii) Taylor Has Stated a Claim Under Title II and § 504

Last, Taylor is suing the Department under Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act. She is bringing this claim for I.L., not for herself. Both statutes ban disability discrimination. 42 U.S.C. § 12132 (Title II); 29 U.S.C. § 794(a) (§ 504). The Department contends that this claim is barred by the statute of limitations and that Taylor has failed to state a claim.

Taylor has properly alleged a Title II and § 504 violation. I.L.’s claim is not barred by the statute of limitations. Tennessee law provides the statute of limitations for I.L.’s Title II and § 504 claim. See McCormick v. Miami Univ., 693 F.3d 654, 662-64 (6th Cir. 2012). Under the Tennessee statute, Taylor must have brought I.L.’s claim within one year of when I.L. suffered discrimination. Tenn. Code Ann. § 28-3-104(a)(l)(A); see Williams v. Trevecca Nazarene Coll., 162 F.3d 1162, at *1 n.2 (6th Cir. 1998) (unpublished). But according to Taylor’s complaint, the Department discriminated against I.L. fourteen months before Taylor sued. [D. 20 ¶¶ 32, 34]. So LL.’s claim is time barred unless the statute of limitations has been tolled.

It has been. Tennessee law also provides the tolling statute. ‘When the statute of limitations is borrowed from state law, so too are the state’s tolling provisions, except when they are inconsis-' tent with the. federal policy underlying the cause of action under consideration.” Bishop v. Children’s Ctr. for Dev. Enrichment, 618 F.3d 533, 537 (6th Cir. 2010) (internal quotation marks omitted). The policies underlying Title II and § 504 are to eliminate disability discrimination and maximize opportunities for disabled people. 42 U.S.C. § 12101(b); 29 U.S.C. § 701(b). Tennessee’s minority-tolling statute allows minors more time to sue for disability discrimination. See Tenn. Code Ann. § 28-1-106(a). This does not undermine the goals of Title II or § 504. See Bishop, 618 F.3d at 538. So if the minority-tolling law applies to LL.’s claim, then it is not time barred.

Tennessee’s minority-tolling law applies to LL.’s Title II and § 504 claim. The law freezes the statute of limitations “for so long as the person to whom the claim belongs is under a disability because of age or unsound mind.” Sullivan ex rel. Beneficiaries v. Chattanooga Med. Inv’rs, LP, 221 S.W.3d 506, 510 (Tenn. 2007) (discussing Tenn. Code Ann. § 28-l-106(a)). The Title II and § 504 claim belongs to I.L., who is still a minor. Her claim is not time barred.

Taylor has also stated a plausible claim. She alleges that the gym-mat fenc-ings violated Title II and § 504, and were made possible by the Department’s deliberate indifference. The Department counters that it cannot be liable for the District’s actions and that it was not deliberately indifferent.

Neither of the Department’s arguments is convincing. First, the Department can be hable for the actions of Knox County Schools. To be clear, Taylor does not assert that the Department is vicariously liable for the District’s actions. Instead, she asserts that the Department is directly liable for its own deliberate indifference to the District’s actions. See S.S. v. E. Ky. Univ., 532 F.3d 445, 454 (6th Cir. 2008); see also Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 641, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). This claim can survive only if the Department had a duty to protect I.L.' from discrimination by Knox County Schools. The Department says that, under Tennessee law, it had no such duty.

The law says otherwise. “The commissioner of education” — the Department’s head — “is responsible for the implementation of law or polices established by the general assembly or the state board of education.” Tenn. Code Ann. § 49-l-201(a). And the Department must “see that the school laws and the regulations of the state board of education are faithfully executed.” Id. § 49-l-201(e)(5) (cleaned up). Tennessee law requires school districts to provide a FAPE to all disabled students. Tenn. Code Ann. § 49-10-103(a). A child can be denied a FAPE when she is not offered reasonable accommodations for her disability. See Doe v. Woodford Cty. Bd. of Educ., 213 F.3d 921, 925 (6th Cir. 2000). So Tennessee law requires the Department to ensure that school districts offer reasonable accommodations to their disabled students.

The Department levels two arguments against this conclusion, but neither is persuasive. First, the Department cites the Tennessee statute on how the Department can enforce state law. Tennessee Code § 49-10-109(a) lets the Department withhold funds from a school district if the district has “failed to provide necessary education to all children with disabilities who by law are entitled to receive the education from the school district” (emphasis added). The Department reads all children as limiting this provision to the extreme situation where no disabled child receives necessary education. Taylor, the argument goes, has not alleged that Knox County Schools failed to provide necessary education. Thus, her claim fails.

This argument reads all children as individualized to every single disabled child, rather than as looking at the group of a district’s disabled children. Yet there are three reasons to reject an individualized reading. For one, it would, be impractical for the Department to confirm whether a school district has failed literally every single one of its disabled children.

For another, other parts of the statute suggest a broader reading of all children. If a school district fails all disabled children, then the Department may take over special education for the district. • Tenn. Code Ann. § 49-10-109(c). But it must return special education to the district “as soon as the commissioner finds that [the district] is willing and able to fulfill its responsibilities pursuant to law.” Id. § 49-10-109(e)(3). That is, the district need only show the commissioner that it can educate its disabled children — not that it will educate each and every disabled child. This suggests that the Department can take over special education when a district has failed to educate its disabled children as a group, not as individuals.

For still another, an individualized reading of all children would stop the Department from intervening when it is direly needed, while letting it intervene when the school district might not be to blame. Consider a school district that fails to provide an education to 9,999 disabled children, but properly educates one lucky child. Under the Department’s individualized reading, the district would somehow still be fulfilling its responsibilities. So the Department could not intervene, even though the district is failing 99.99% of its disabled children.

■ Now consider another school system that has only 5 disabled children, all of whom suddenly need a new IEP right away. Until those children receive a new IEP and are taught to, it, the district— through no fault of its own — is failing each and every one of its disabled children. But under the Department’s individualized reading of all children, it could choke off funds to the district.

A group-based reading of all - children, however, presents none of these problems. It is much simpler for the Department to determine if. a district is failing a critical mass of its disabled children. This reading also comports with the standard for returning special education to a school district. And it lets the Department intervene when a district is failing most of its disabled children while giving breathing room to blameless districts that find themselves failing their disabled children. The Department’s first argument does not change the Court’s conclusion.

Second, the Department states that it has “absolutely no. control over the management or operation of any KCS school, including the school I.L. attended.” [D. 29 at 17]. To' a degree, the Department' is right. Each local school board has a duty to “manage and control all public schools established or that may be established under its jurisdiction.” Teñn.- Code Ann. § 49-2-203(a)(2) (cleaned up). But the actual managerial tasks assigned to local school boards include giving teachers tenure, firing school employees, suspending students, and buying supplies. Id. § 49-2-203(a). School boards manage the day-today affairs and keep school districts running. The Departmént still has a duty to ensure that school districts follow federal and state law.

The Department next contends that Taylor has failed to state a claim because it was not deliberately indifferent to the District’s disability discrimination. To prove her Title II and § 504 claim, Taylor must show that I.L. (1) is disabled under these laws; (2) is otherwise qualified to participate in public education; and (3) is suffering discrimination in public education based on her disability. S.S., 532 F.3d at 453. The parties dispute the mindset required for the third element. The Department contends that Taylor must show deliberate indifference. Taylor maintains that, because she seeks only injunc-tive relief on her Title II and § 504 claim, she need not prove deliberate indifference.

Taylor is correct. This question has not been answered by the Sixth Circuit. It has appeared before the Sixth Circuit twice, but the parties agreed on an answer. See R.K. ex rel. J.K. v. Bd. of Educ. of Scott Cty., 637 Fed.Appx. 922, 925 (6th Cir. 2016); Hill v. Bradley Cty. Bd. of Educ., 295 Fed.Appx. 740, 742 & n.2 (6th Cir. 2008). So the Court will start from the beginning. -See Mark C. Weber, Accidentally on Purpose: Intent in Disability Discrimination Law, 56 B.C. L. Rev. 1417 (2015).

The “remedies, procedures, and rights” of Title II are those of § 504. 42 U.S.C. § 12133. And the “remedies, procedures, and right” of § 504 are those of Tile VI of the Civil Rights Act. 29 U.S.C. § 794a(a)(2). But- Title VI does not expressly allow people to sue for Title VI violations. Instead, it contains an implied right to sue. Cannon v. Univ. of Chi., 441 U.S. 677, 694-95, 702, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). So Title II and § 504 contain implied rights to sue for Title II and § 504 violations.

The next question is what kinds of Title II and § 504 violations people can sue over. See Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 65-66, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). People can sue only for intentional violations of Title VI. Alexander v. Sandoval, 532 U.S. 275, 280-81, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). So one might think that people can sue only for inténtional violations of Title II and § 504. Not so. While the Supreme Court has not outright said that § 504 covers unintentional discrimination, it has rejected the idea that § 504 covers only intentional discrimination. Alexander v. Choate, 469 U.S. 287, 294-97, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). And Title II, for its part, “concerns more than intentional. discrimination.” Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 908 (6th Cir. 2004). Thus — despite the “remedies, procedures, and rights” language linking Title II, § 504, and Title VI — the first two diverge from Title VI at this point. They all contain an implied right to sue, but only Title II and § 504 cover both intentional and unintentional discrimination. Title II and § 504 provide greater rights than does Title VI.

And there is no right without a remedy. Sandoval, 532 U.S. at 286-87, 121 S.Ct. 1511. Title VI provides a right to sue. It thus makes remedies available for Title VI violations. Barnes v. Gorman, 536 U.S. 181, 189, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). Title Vi’s right to sue carries over into § 504 and Title II. So Title VI makes the same remedies available for Title II and § 504 violations. Id. These include injunctions and compensatory damages, but not punitive damages. Id. at 187, 189, 122 S.Ct. 2097.

Of course, that certain remedies are available says nothing about what must be shown to obtain those remedies. The next question — the real question here — is what a plaintiff must show to win an injunction, and what she must show to win damages. Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002), is instructive. In Barnes, the Supreme Court ruled that Title II and § 504 plaintiffs can win injunctions and compensatory damages but not punitive damages. Id. at 187, 189, 122 S.Ct. 2097. The plaintiff had sued for failure to accommodate his disability. Id. at 184, 122 S.Ct. 2097. The case was appealed from the Eighth Circuit. Id. At the time, the Eighth Circuit did not require proof of intent for failure-to-accommodate claims. See, e.g., Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 726-28 (8th Cir. 1999). So the Barnes court let a plaintiff recover damages under Title II and § 504 without proving intent.

In fact, Barnes did more than that. As the Court said,

When a federal-funds recipient violates conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is “made good” when the recipient compensates the Federal Government or a third-party beneficiary (as in this case) for the loss caused by that failure.

536 U.S. at 189, 122 S.Ct. 2097. The defendant had unintentionally violated the plaintiffs Title II and § 504 rights, and so had to make good the wrong done by giving him damages. This suggests that a plaintiff can recover damages under Title II and § 504 without proving intent. And because “intent may be inferred from deliberate indifference,” it suggests that that a plaintiff can recover damages under Title II and § 504 without proving deliberate indifference. Hill, 295 Fed.Appx. at 742; see also Ability Ctr., 385 F.3d at 909 (“Title II prohibits public entities from denying, even unintentionally, qualified disabled individuals meaningful access to the services or benefits they provide.”).

It follows that a plaintiff can win an injunction under Title II and § 504 without proving intent. Intent does not separate injunctions from damages. What really separates them is that injunctions may be awarded when damages would not be adequate to make up for the plaintiffs harm. See, e.g., Barry v. Lyon, 834 F.3d 706, 720-21 (6th Cir. 2016). “Adequacy,” meanwhile, “does not depend on a party’s ability to prevail on the merits.” Rimmer v. Holder, 700 F.3d 246, 262 (6th Cir. 2012). What a plaintiff must prove at the merits stage is independent of what she must prove at the remedies stage.

And that is the key here; at the remedies stage. Eight courts of appeals require that a plaintiff prove some mental state before winning damages under Title II and § 504. The reasoning goes like this: The remedies under Title VI are the same as those under Title II and § 504. And the Supreme Court has twice recognized that Title VI plaintiffs can recover damages only for intentional discrimination. Guardians Ass’n v. Civil Serv. Comm’n of N.Y., 463 U.S. 582, 608 n.1, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (Powell, J., concurring in the judgment); Alexander v. Sandoval, 532 U.S. 275, 280-81, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (discussing Guardians). Thus, Title II and § 504 plaintiffs can recover damages only for intentional discrimination.

This reasoning, however, reads Guardians and Sandoval too narrowly. True, the Court did hold that intentional discrimination is required for damages under Title VI. See Sandoval,