Thursday, September 19, 2013
For those who dug a little deeper on the special education case I posted yesterday, Horton v. Boone Cnty. Sch. Dist., 2013 WL 4875025 (E.D. Kentucky 2013), you may have noticed an oddity. The plaintiff's claim was about the failure to properly implement the student's Rehabilitation Act Section 504 plan, but the court dismissed the claim for failure to exhaust IDEA administrative remedies. This struck me as odd and irrelevant, but I did not address it in my post because I was not sure of the right answer and I did notice that the plaintiff had cited to some Kentucky regulations, which looked to be IDEA implementing regulations. In other words, maybe there was an IDEA claim there and I just did not see it.
Mark Weber was nice enough to clarify the issue for me and point out what is another significant issue in cases of this sort. He offered the following:
IDEA 20 U.S.C. sec. 1415(l) requires exhaustion through IDEA procedures of claims under Section 504 seeking relief that is also available under the IDEA procedures. Courts have been reluctant to apply that provision as written for fear that parents will simply attach a damages claim under Section 504 to their IDEA case and then claim they are excused from exhaustion. Courts that understand that difficulty but nevertheless want to respect the statutory language have developed fairly nuanced approaches, for example that of the court in Payne v. Peninsula Sch. Dist., 653 F.3d 863 (9th Cir. 2011) (discussing exhaustion of constitutional and other claims), approaches that carefully analyze what relief is actually available and actually sought in the case. I think the court in the Kentucky case is on solid ground in saying that the child’s graduation does not by itself excuse exhaustion. The child is no longer eligible for ongoing services under IDEA, but may still be awarded compensatory education as relief for an IDEA violation if one occurred. But if both the parents and the school agree that the child was never eligible for services under IDEA, which appears to be the case here, then the logic of S.H. is that exhaustion should not be required because no relief could ever be available to this child under IDEA. Or at least that’s my conclusion.