New Supreme Court Special Education Decision Has Flawed Reasoning #scotus #exhaustion

Yesterday, the U. S. Supreme Court ruled in Fry v Napoleon Community Schools Docket No. 15-497, 580 U. S. ____ (2017). The decision by Justice Kagan was unanimous 8-0, although two justices issued a separate concurring decision. How about that special education, bringing people together! Yay!

I cannot believe that I am about to provide an argument below that the reasoning of the court is flawed! The facts are as follows:  The student in this case has a severe form of cerebral palsy that significantly limits her motor skills and mobility. Her parents obtained a service dog, a goldendoodle named Wonder who aids the student by retrieving dropped items, helping her balance on her walker, opening and closing doors, turning on and off lights, etc. The elementary school attended by the student refused to allow her to bring the service dog, claiming that her needs were met by the human aide provided by her IEP. (I love service dogs!)(Photo below by Amy Howe of the SCOTUS blog.)

The parents removed the student from school and began homeschooling her. After an OCR complaint, the elementary school offered to allow the dog to attend with the student, but the parents felt that the principal would resent the student and make her return difficult, so the student was enrolled in a different public school in a different district. (NB because the case was originally decided on a motion to dismiss all facts plead in the parents complaint were accepted as true.)

The parents then filed suit in federal court alleging violations of the Americans with Disabilities Act and §504 of the Rehabilitation Act. The district court granted the school district's motion to dismiss holding that exhaustion of administrative remedies require the parents to first have a due process hearing before an IDEA hearing officer. The Sixth Circuit Court of Appeals agreed with the District Court. The Supremes granted certiorari.  

The Supreme Court's holding has two parts. First it ruled that exhaustion of IDEA hearing procedures is only required where parents seek relief for a denial of a free and appropriate public education. Second it held that courts must look to the gravamen of a complaint to determine whether it seeks such relief.

The reasoning of the court really troubles me. The basis for the ruling is the court's conclusion that the only relief that a hearing officer can give is relief for a denial of FAPE. Apparently the parties stipulated to this fact, but unfortunately it is wrong.  The court's standard is fine for the 85%+ of IDEA cases that involve a denial of FAPE, but how about the other cases? There are four specific areas that can give rise to a due process complaint for an IDEA violation. Denial of  FAPE is one of the four areas; the others are evaluation, identification (including child find and eligibility) and placement (including allegations of least restrictive placement violations, disciplinary changes of placement, etc). IDEA §615(b)(6)(A); 34 CFR § 300.507(a)(1). What about those cases? Does this opinion authorize parents who are alleging an LRE violation or a child find violation or an independent educational evaluation at public expense the right to go directly to court without first exhausting administrative remedies because the gravamen of their complaint is not a denial of FAPE? Will parent lawyers test this new ruling by avoiding FAPE but challenging the other three categories of IDEA violations? I cannot believe that this is the result the high court is anticipating.

The court's confusion, as well as the parties, seems to stem from the changes made to IDEA in 2004 concerning procedural violations. Specifically, the Act was amended to include a provision that procedural violations only constitute a denial of FAPE where there was something more, like an adverse effect on the student's education or a substantial impeding of the parent's participation rights. IDEA § 615(f)(3)(E). The section also includes a requirement that the decision of a hearing officer be based upon substantive grounds. The Office of Special Education Programs, specifically because of these considerations, wrote the federal regulation to clarify that only a hearing officer's decision concerning whether FAPE was provided must be on substantive grounds. 34 C.F.R. §300.513(a). In an attempt to allay fears that the provision might limit hearing officers to ruling ony on FAPE issues, OSEP in its analysis of comments to the proposed federal regulations specifically stated that despite this new provision in IDEA "...(h)earing officers continue to have the discretion to dismiss complaints and make rulings  on matters in addition to those concerning the provision of FAPE, such as the other matters mentioned in §300.507(a)(1)." 71 Fed. Register No. 156 at page 46707 (OSEP August 14, 2016). The other matters in the quoted regulation are placement, identification and evaluation. 

OK so the basis for the court's holding is wrong! I find myself in the awkward position of disagreeing with counsel for the parties, and all eight justices. I am out on a limb, but I believe that this decision causes more problems than it solves!

From there the high court provides guidance to lower courts in interpreting this test. The Supreme Court ruled that the lower courts must look at the substance or gravamen of the complaint- to prevent parties from avoiding the exhaustion requirement by artful pleading. 

The court then suggests some specific questions for lower courts to consider. This is where the concurring justices (Alito and Thomas) get off; they find the suggested questions which begin on page 15 to be not so good.  The six justice opinion offers three questions. First could a plaintiff have brought essentially the same claim for a public facility that is not a school- a theater or library for example. Second could an adult at the school- an employee or visitor for example-  have brought essentially the same grievance? If the answer to these questions is yes, exhaustion would not be required because the gravamen of the complaint would not be a FAPE case. Another line of inquiry for lower courts suggested by the high court  involves the parent's prior history with IDEA proceedings. A plaintiff that began seeking relief in a due process hearing may possibly be after relief for a denial of FAPE.

One issue that the Supreme Court specifically did not reach was whether exhaustion of IDEA remedies is required where the plaintiff complains of a denial of FAPE, but seeks a remedy that an IDEA hearing officer cannot give such as money damages. Because the parents argued that their complaint was not about a denial of FAPE, the Court specifically ducked the issue as unnecessary to the resolution of this case. See footnotes 4 and 8, and the surrounding text. So this decision does not provide guidance in that situation.

So there you have it- a special education decision by the Supreme Court. You can read the opinion and the concurring opinion here. What do you think? What are the implications for the application of IDEA exhaustion to §504, ADA and other causes of action? Do the lower courts have clear guidance?