In the past, the IDEA’s exhaustion requirement has been applied in various parts of the United States to routinely bar lawsuits for injunctive relieve and/or money damages against school districts and their employees for violations of Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and the Americans with Disabilities Act (“ADA”), when administrative due process procedures were not used first. Our Ninth Circuit began to move away from hard and fast application of this rule in its 2011 decision in Payne v. Peninsula School District, 653 F.3d 863 (9th Cir. 2011)(en banc). The U.S. Supreme Court has now made national, the Ninth Circuit’s curve ball approach, by ruling that the IDEA’s pre-lawsuit exhaustion requirements do not per se apply where the lawsuit seeks relief that cannot be addressed through the IDEA’s administrative due process procedures. (Fry v. Napoleon Community Schools, No. 15-497 (U.S. Feb., 22, 2017))
The Court in Fry analyzed the federal statutory and case law requiring that due process be “exhausted” before bringing lawsuits in court against public school districts and employees. In particular, the Court considered the IDEA provision that states, “…except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].” (20 U.S.C. Section 1415(l))
Background of Fry
Fry arose out of a Michigan school district’s refusal to allow a 5-year old girl with a severe form of cerebral palsy to bring her service dog, “Wonder,” to school. The Student’s motor skills and mobility were significantly limited. Wonder was certified and trained to help Student with mobility and assist her in daily activities. The District refused to permit Student to attend school with Wonder because she had a 1:1 aide pursuant to her IEP. The District allowed Wonder on a “trial” basis in the spring for the balance of the school year. However, Wonder was required to remain in the back of the room during class and was prohibited from assisting Student with all the tasks he was specifically trained to do. Additionally, Wonder was not allowed to accompany Student during recess, lunch, computer lab, or library time. After the trial period, the District denied the request for Wonder to continue serving Student at school during the following school year.
Student’s Parents first filed an OCR complaint and subsequently filed the current suit in federal court alleging violations of the ADA and Section 504 for denying equal access and reasonable accommodations. Student’s parents only requested a finding that the District violated the ADA and Section 504 entitling them to monetary damages. The District Court granted the school’s motion to dismiss the lawsuit. Upon appeal, the 6th Circuit affirmed and held the educational nature of the parents’ Section 504 and ADA claims required them to exhaust their administrative remedies, before seeking relief in the courts. In response, Student’s Parents appealed to the U.S. Supreme Court.
Determining the “Essentials” of a Complaint
The U.S. Supreme Court held that if a lawsuit suit is brought under a different statute like Section 504 and/or the ADA and the remedy sought is not for the denial of FAPE, then exhaustion of the IDEA’s procedures may not be required. However, the Supreme Court provided guidance to the lower courts to help them determine whether the allegations in a lawsuit involve a denial of FAPE even if not expressly stated in obvious, FAPE denial terms.
First, the Court said the substance of the lawsuit must be scrutinized for what is really claimed, rather than relying on the use of labels. In other words, a parent cannot escape the exhaustion requirement simply by bringing a suit under a statute other than an IDEA or avoiding the terms “FAPE” or “IEP” to evade exhaustion if the remedy is in fact something a special education administrative law judge can grant. For example, if the complaint is filed under the ADA and omits the words “FAPE,” “special education,” and/or “IEP” but the proposed resolution is placement in a nonpublic school and compensatory speech services, these are remedies an ALJ can provide and exhaustion under the IDEA would be required.
The Court went on to provide an “out of the box” analytical mechanism to assist reaching the conclusion that exhaustion is not required: “One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a 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 theater or library? And second, could an adult at the school — say, an employee or visitor — have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.”(Emphasis added)
Ultimately, the Court reversed the decision of the 6th Circuit Court of Appeals and sent the case back down to the lower court so that court could make a further determination about whether exhaustion was required in light of the Court’s ruling and an application of that ruling to the facts of the case.
Protecting Districts: Tighten Up Your LEA’s Accommodation/Service Request Procedures
This decision reinforces what we have been advising clients: tighten up Section 504 and ADA procedures so that your district can determine whether equal access/equal opportunity issues are in play and need to be addressed through processes in addition to an IEP team meeting. If a student with a disability makes a request for an accommodation or service, discuss the request through the following lenses: the IDEA, Section 504, and the ADA as the case may be, to determine if the request should be granted and document what was considered and the reason behind the decision to grant or deny the request.