Thursday, February 23, 2017

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?


  1. I think you are reading too much into the ruling. The parents sued under the ADA, not the IDEA. The question before the court was whether an ADA complaint must first pass through IDEA wickets before it reaches an ADA issue. In other words, does one law supercede the other or are they co-equal? The court said they are co-equal and if there is an issue under the ADA, but not the IDEA, the procedures under the IDEA are irrelevant. Bottom line: this was a disabilities rights case, not an education case. That's why they asked about non-educational settings such as libraries or theaters.

    With respect to questions such as, "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?" The answer is obviously "NO." The court was not presented that question and did not rule on that question, directly or indirectly. That is an education (IDEA) question, not a disability rights (ADA) question, so it would require following the IDEA's administrative process.

  2. Anon,

    Thanks for your comment.

    I am probably reading too much into it, but couldn't a parents lawyer phrase an IDEA issue as a disability discrimination issue without much work. For example, an IDEA LRE violation could easily be phrased as a violation of ADA's integration presumption right? This would clearly not be a FAPE issue even though it is a violation of IDEA. There seems to be an invitation to plead IDEA facts as other statutes to avoid the administrative process. I do not like faulty reasoning.

    Probably, though, most of the future litigation though will be under FAPE cases seeking money damages- which the court did not address.


  3. "Reading too much into a SCOTUS decision"? Seems like an odd response: that's what happens to SCOTUS decisions - they are peeled like an onion, ad infinitum.

  4. VM

    Thank you for your comment.


  5. This case is a bit confusing. If the parent filed suit against the district for violating the Americans with Disabilities Act (ADA), why would the court dismiss the case and grant the district's motion that they need to first have a due process hearing before an IDEA hearing officer. It seems like the courts misunderstood why the parents filed suit. Yes, an assistant in the school could help the student with her needs, but what about when she goes home. This gives the child some independence and freedom without her parents hovering above her for when she needs basic assistance.

  6. I thought hearing officers were limited in their authority to remedy non-IDEA violations. The current practice prior to this ruling was to bring every possible complaint (whether ADA, 504, IDEA) to the hearing officer just so the hearing officer could say, "nope--those particular ADA and 504 concerns are outside of my jurisdiction" or "I can't order systemic change" thus, uselessly, "checking" the exhaustion box for IDEA when every party knew going into the due process hearing that the hearing officer wouldn't be able to address them. It also (I beg forgiveness for my ignorance of legal terminology) protected the issues from being dismissed because they weren't brought up as a concern at the very beginning of the process (that's a thing, right? Go to court but unless the parent gave the school a shot at the issue in IEP/due process then it would be immediately dismissed?).

    From a common sense standpoint, I agree with anonymous. I've heard about a case where a school claimed feeding tube maintenance was a FAPE issue and it seemed like as long as the school denied everything in an IEP meeting that they met ALL their obligations to the student as a student with a disability because the student was able to get passing grades.

    And those questions really don't help with that because an employer or theater doesn't need to provide the service to clean out a feeding tube, but a child who is at school for many hours and needs to go on field trips will need that level of support.

  7. Anon,

    Thanks for your comment.

    In some jurisdictions IDEA hearing officers also hear §504 claims. In most, they do not.