Seyfarth Synopsis: The Supreme Court has clarified IDEA’s exhaustion requirement to allow claims brought on behalf of IDEA eligible students to proceed directly in court unless the “gravamen” of the complaint seeks relief for a denial of a free, appropriate public education (FAPE). This holding suggests that in the future more litigation will be filed directly in federal court for alleged discrimination and accessibility violations under Title II and Section 504 even when the litigation relates to students otherwise eligible for special education services under IDEA.

On February 22, Justice Kagan delivered the U.S. Supreme Court’s opinion in Fry v. Napoleon Comm. Schools et al., 580 U.S. ____ (2017) and refined the scope of the Individuals with Disabilities Education Act’s (IDEA) exhaustion requirement and holding that this requirement may -- in certain circumstances -- not apply to a complaint brought under Title II of the ADA and Section 504 of the Rehabilitation Act. The case specifically addressed whether IDEA’s exhaustion requirement barred claims for injunctive and monetary relief under Title II and Section 504 based on allegations that a school district denied a disabled child her right to bring a service dog to school, despite the existence of an individualized education program (IEP) which specified that the student would have an individual aid while attending school.

This case came up to the Supreme Court after the Court of Appeals for the Sixth Circuit affirmed a District Court’s dismissal of the case holding that IDEA’s exhaustion requirement at Section 1415(l) required that relief first be sought through IDEA’s administrative processes. A divided panel of the Sixth Circuit Court of Appeals applied the rule enunciated in Charlie F. v. Board of Ed. of Skokie School Dist. 68, 98 F.3d 989, 993 (7th Cir. 1996) that exhaustion is necessary whenever “the genesis and the manifestations” of the complained of harms are “educational” in nature. Certiorari was ultimately granted by the Supreme Court to clarify the scope of IDEA’s exhaustion requirement.

Noting that IDEA’s statutory language requires exhaustion when a civil action is brought “seeking relief that is also available under [the IDEA],” the Supreme Court held that to meet the IDEA’s statutory exhaustion standard, “a suit must seek relief for the denial of a [free appropriate public education (FAPE)], because that is the only ‘relief’ the IDEA makes ‘available.’” The Court found that a court should look to the “gravamen” of the plaintiff’s complaint in making the determination and pointed out that IDEA’s “statutory language asks whether a lawsuit in fact ‘seeks’ relief available under the IDEA--not, as a stricter exhaustion statute might, whether the suit ‘could have sought’ relief available under the IDEA.” The Court recognized overlap in the protections afforded by IDEA which is designed to guarantee students individually tailored special education and related services to provide FAPE and the protections of Title II and Section 504, which mandate nondiscriminatory access to public instruction. In so doing, the Court provided “clues” to guide the exhaustion determination. The Court describes the first clue as coming from the following “pair of hypothetical questions”:

“First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school-- say a public theatre or library? And second, could an adult at the school--say, an employee or visitor--have pressed essentially the same grievance?”

The Court opined that when “the answer to these questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about the subject.” The Court identifies the second clue as:

“emerg[ing] from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA’s formal procedures to handle the dispute--thus starting to exhaust the Act’s remedies before switching midstream.”

Recognizing that the history of the underlying proceedings might suggest that the “gravamen of [Parents’ federal lawsuit] is the denial of FAPE,” the Court remanded the case with instructions that the court below should “decide whether their actions reveal that the gravamen of their complaint is indeed the denial of a FAPE, thus necessitating further exhaustion.”

Justice Alito, joined by Justice Thomas, concurred in the judgment and concurred in part in the opinion with the exception of its discussion of the guidance for lower courts in deciding the issue of when IDEA’s exhaustion requirement should be applied. Justice Alito notes that the “clues” are “likely to confuse and lead courts astray” noting that “[i]t is easy to imagine circumstances under which parents might start down the IDEA road and then change course and file an action under the ADA or the Rehabilitation Act that seeks relief that the IDEA cannot provide.”

As a practical matter, this decision highlights the importance of compliance with Title II’s and Section 504’s accessibility mandates. Failure to adequately monitor and address issues of alleged noncompliance could now lead to a lawsuit filed in court without IDEA’s processes and opportunities to resolve complaints before litigation is commenced. Therefore, this holding suggests that more litigation will be filed directly in court under Title II and Section 504 asserting that a public school failed to provide non-discriminatory access to an aid, benefit or service to disabled students otherwise eligible for IDEA’s special education programming.