Thursday, February 23, 2017

A New Approach to Exhaustion in Cases Involving Students with Disabilities by Mark Weber

On Wednesday, Feb. 22, 2017, the Supreme Court decided Fry v. Napoleon Community Schools, No. 15-497. The case concerned a student with cerebral palsy who was denied permission to bring her service dog, a goldendoodle named Wonder, to school. The dog aids her by retrieving objects, helping her balance when she uses her walker, and performing other tasks independently of assistance from adults or others. Although she eventually obtained permission to use the dog through an Office for Civil Rights complaint, the child’s parents thought that there might be resentment and difficulty with obtaining full cooperation from the school. They moved her a different school district and sued the original one under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, seeking declaratory relief and damages. The Sixth Circuit affirmed dismissal of the case on the ground that the family had not exhausted the due process hearing procedure available under the Individuals with Disabilities Education Act. The Supreme Court vacated the decision and remanded the case.

Section 1415(l) of 20 U.S.C. provides that IDEA procedures have to be exhausted when an action is filed under the ADA, Section 504, or other laws that “seek[s] relief that is also available” under IDEA. The Court, per Justice Kagan, said IDEA makes relief available for denials of free, appropriate public education (FAPE) and that in determining whether a lawsuit seeks relief for a denial of FAPE, courts should look to the substance (the “gravamen”) of the complaint. The gravamen depends on the framing of the complaint, rather than an inquiry whether the family could have sought relief under IDEA, but the use or failure to use a given label does not matter. The Court said there are possible clues about whether the gravamen is denial of FAPE: whether essentially the same claim could have been brought in a situation where there is no FAPE obligation, as with a suit for access to a public library that lacks ramps, or whether a suit similar to the one brought by the family could have brought by an adult visitor or employee (no exhaustion would be required in a similar case brought by a student against a school district). The opinion also suggested that if the parents initiated proceedings under IDEA, that is an indication that the gravamen of the complaint is a denial of FAPE. Justice Alito (with Justice Thomas) concurred in part and concurred in the judgment. He disagreed about the “clues,” arguing that they did not take full account of the overlap between the disability discrimination laws and IDEA. In particular, the initiation of proceedings under IDEA might be based on parental misunderstanding of the legal rule or a later-abandoned decision about what relief to seek.

I think a large number of observers will welcome what appears to be a thoughtful and more liberal approach to when cases that bypass administrative procedures should be heard by courts. The Court’s approach seems similar in some regards to the liberalization that the Ninth Circuit undertook in Payne v. Peninsula School District, 653 F. 3d 863, 874 (2011). I share the concerns of Justice Alito, though, that the clues that the majority opinion relies on are at best incomplete and may, in the instance of initial filing of proceedings under IDEA, be misleading. In a number of cases, courts have recognized that ADA and Section 504 require school districts to provide services that are greater than those entailed by IDEA’s duty to provide FAPE. The leading example is K.M. v. Tustin Unified School District, a case in which deaf students lost their IDEA claim for communication access real-time captioning but prevailed on their claim under the ADA. To require IDEA exhaustion in a case in which the school district argues and the family concedes that the relief is unavailable under IDEA seems nonsensical, even if the family thought at some point it might succeed under IDEA and filed (and later abandoned) a due process challenge.

The Court explicitly left undecided the issue whether exhaustion would be required when the complaint under the ADA or other laws concerns the denial of FAPE but the specific remedy asked for is compensatory damages beyond reimbursement for actual expenses, damages relief that courts generally agree is not relief available under IDEA. The literal terms of the statute would dictate that exhaustion is not required, but concerns have been raised that litigants should not be able to bypass exhaustion simply by adding an ADA or Section 504 damages claim for emotional distress to their suit.

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