The questions asked by Justices Kennedy and Bryer showed that they are concerned about the problem of defeating the exhaustion requirement by careful drafting. Justice Bryer told the attorney for the school district that the problem in ruling against him is not so much this case (where the parties agree that there has been no IDEA violation), but in other cases where artful pleadings could force judges to decide IEP issues without the preliminary negotiations and other IDEA procedures, yet the problem in deciding for him is that almost anything can be an IEP issue. He suggested that the standard should perhaps not be what is in the complaint, but rather, what is the gravamen of the complaint.
Chief Justice Roberts and Justice Bryer were concerned about the effect of the high court's ruling upon the cooperative process outlined by IDEA.
The lawyer for the school district stated that in real life lawyers for parents sue for money damages on day one and then "extort" a better settlement or result from the school district.
Early on, Justice Bryer suggested that the case could be resolved by the existing futility exception to the exhaustion requirement. The Solicitor General later picked up on this argument.
After counsel for the school district argued that IDEA timelines require a quick hearing, Chief Justice Roberts pointedly noted that 105 days to go through IDEA procedures is a big part of a school year.
Chief Justice Roberts drew the biggest laugh by suggesting that the solicitor general would not follow the strategy he had outlined in argument adding "... but I guess you're the better judge of that than I am."
Here are the complete transcripts of the oral argument before the high court. The briefs, including the many amicus briefs, are available through links on the SCOTUS blog's case page.