How One Circuit Court Applied Fry #exhaustion #scotus #seclusion #restraints

One Circuit has applied the new rule regarding exhaustion of administrative remedies for special education cases announced by the Supreme Court in Fry v Napoleon Community Schs 69 IDELR 116, 137 S.Ct. 742, 580 U.S. _____ (2/22/17).   You can read our previous posts about the Supreme Court decision here, here and here.

The Eighth Circuit in JM by McCauley v Francis Howell Sch Dist, No 16-1756, 69 IDELR 146 (8th Cir 3/7/17) affirmed the district court decision dismissing the parent's ADA/§504/§1983 claims because the parent did not first exhaust administrative remedies. The parent contended that the district violated IDEA and the other statutes and constitutional provisions by placing the student repeatedly in seclusion and by improperly using restraints. The parent later amended her complaint to remove the IDEA and state common law claims.

The Eighth Circuit stated:

"The IDEA’s exhaustion requirement also applies to claims under the Constitution, the ADA, the Rehabilitation Act, and other federal laws protecting children with disabilities to the extent those claims seek relief “that is also available under [the IDEA].” 20 U.S.C. § 1415(l); Fry v. Napoleon Cmty. School, No. 15-497, 2017 WL 685533, at *8 (U.S. Feb. 22, 2017)...After argument in this case, the Supreme Court held that “‘relief that is also available’ under the IDEA” means “relief for the denial of a FAPE, because that is the only ‘relief’ the IDEA makes ‘available.’” Fry, 2017 WL 685533, at *8. Thus, “exhaustion is not necessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee—what the Act calls a ‘free appropriate public education.’” Id., at *3, quoting § 1412(a)(1)(A)." 

In analyzing whether the parent's complaint concerned FAPE, the Eighth Circuit reasoned as follows: "Considering “substance, not surface,” the district court did not err in finding the complaint seeks relief for denial of a FAPE under the IDEA. Id., at *11. The second amended complaint states, “At all times mentioned above, [J.M.] was entitled to the educational services and protections available under the Individuals with Disabilities Education Act of 1975” and “at all times[J.M. was] entitled to reasonable accommodations” for his disabilities. It alleges that “[b]etween February 2014 and September 5, 2014, J.M. was placed in physical restraints for half of the time he actually spent at Defendant’s schools.” It further states that J.M. was “denied . . . because of his disability, participation in and the benefits of a public education.” These allegations show that the complaint was based on the “denial of a FAPE” under the IDEA. See id., at *13 (determining the Fry’s complaint “alleges only disability based discrimination” and “contains no allegation . . accus[ing] the school even in general terms of refusing to provide the educational instruction and services that E.F. needs”)... The complaint here is not based on disability discrimination. Except for Count IV (the MHRA claim), the complaint does not use the word “discrimination.” Rather, the complaint is based on how the use of isolation and physical restraints failed to provide proper “sufficient ‘supportive services’ to permit [J.M.] to benefit from . . . instruction,” id., at *4, and ultimately “denied [J.M.] . . . the benefits of public education.” Finally, although McCauley did not “invoke[] the IDEA’s formal procedures to handle the dispute,” “the history of the -6- proceedings,” including her initial complaint and first amended complaint contained claims under the IDEA, which is “[a] further sign that the gravamen of [the] suit is the denial of a FAPE.” See id., at *13." (emphasis added).

After concluding that no exception to the exhaustion requirement was applicable, the Eighth Circuit dismissed the claim.

You can read the entire Eighth Circuit decision here.

So what do you think of this ruling?

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Special Education Law 101 - Part I #IDEA #specialeducationlaw

Special education law is complicated stuff.  I have said here before that Special Ed Law is a lot closer to metaphysics than it is to contract law.   If you hate ambiguity, Special Ed Law may not be your thing. (I still believe that there is a Jeff Foxworthy joke in there somewhere.)

Any way, inspired by a presentation that I gave at a national conference of the Council for Exceptional Children, we periodically run a series of posts on the nuts and bolts of special education law. The series is a good refresher for veterans and a solid introduction for folks new to special education law.  So are you ready for special ed law 101?

So please fasten your seat belts and ensure that your tray tables are in their locked and upright positions... we are cleared for takeoff...  Get ready for a trip back to the basics ... starting now.

This is first of a multi-part series of posts on the basic nuts and bolts of special ed law. We will review the statute and regs, as well as the supreme court decisions and a few of the most important opinions of the circuit courts of appeal.  This is just an overview.  There is a LOT more stuff!

So we hope that you enjoy the introduction, but if you get into a problem, consult a lawyer, preferably one experienced in this complex area.  Here we go

A.   Sources of Special Education Law

The primary source of special education law is the federalIndividuals with Disabilities Education Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.”  (NOTE:  many people refer to the sections of the act as beginning with section 600.  Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.)  The regulations promulgated by the United States Department of Education to implement the IDEA are found at 34 C.F.R. Part 300.  Many state have adopted their own special education regulations.  

Court decisions that interpret the IDEA issued by the courts of your state, by the United States Supreme Court, and by the federal Circuit Court of Appeals and the federal District Courts that cover your state or District are binding.  Other court opinions and hearing officer decisions issued under the Act may be cited and used if you find their reasoning to be persuasive, but they are not binding precedent.  Similarly, opinions issued by the federal Department of Education interpreting the Act provide helpful guidance, but they are also not binding precedent.

Although the IDEA and the federal regulations, and corresponding state regulations and policies, and the relevant decisions interpreting them are by far the most important sources of special education law, other statutes do sometimes become involved.  The Rehabilitation Act of 1973, 29 U.S.C.  Section 794, et. seq., commonly referred to as “Section 504,” prohibits discrimination on the basis of disability in certain federally funded programs, including education.  The federal regulations that implement the statute are found at 34 C.F.R. Part 104.

Finally, another law that pertains specifically to educational records is the Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g, et. seq., hereafter sometimes referred to as “FERPA.”  The regulations implementing FERPA are found at 34 C.F.R. Part 99.

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Endrew F and The Metaphysics of Special Education Law #metaphysics #Hegel #Paul Simon

We have gotten a robust reaction to the post a while back concerning who won Endrew F? It seems that each side (parents and school officials) still thinks that they won. Why is that?

First, we should probably take a look at special education law.  We have long said here that special education law is closer to metaphysics than it is to contract law. Contract law, and other types of old law, have "hornbook" rules that have been settled for ages. Old lawyers can apply those settled rules to a fact pattern and predict an outcome with reasonable certainty. (Although as one very senior attorney once told me, "anybody who says they know what a jury will do is lying.")

Special ed law, though, is new law new law being roughly defined as what did not come over on the boat from England. The mid 1970's stuff is brand new law. Especially when you mix in equal parts of social policy and children's rights, the result is probably less predictable than other fields of law.  Pity the fool.

Add to this mix, the never-ending cycle of special education law and things become even less clear. IDEA must be periodically reauthorized by Congress, and we are once again overdue. Then the U. S. Department of Education must promulgate regulations (if that is still a thing in this age), upon which the public may comment before they are finalized. Then, states develop regs. Soon hearing officer decisions appear followed by court opinions. Just when we become comfortable with the current state of the law, Congress reauthorizes and the process begins again. Let's just say that our "rules" are a little fuzzy around the edges.

Is the slipperiness of special education law what is behind the fact that both sides embrace a unanimous Supreme Court decision as supporting their own position? Is the concept of FAPE so elusive that it cannot be defined? Is it like what Justice Potter Stewart said about pornography- I can't define it, but "...I know it when I see it." Jacobellis v Ohio, 378 U.S. 184 at 197 (Stewart, J concurring)?   Is it like my authority as a hearing officer- where I claim that "my powers are beyond your comprehension? Could this be the explanation? Or maybe it is something else?

Maybe it really is metaphysics?  Could the reaction to Endrew F be an example of what Hegel described as "consciousness determines perception." See, G.F.W. Hegel, "The Phenomenonology of Mind." Does the side your on affect how you read the caselaw? This concept was stated somewhat more poetically by song writer Paul Simon in the lyrics to "The Boxer," "A man sees what he wants to see and disregards the rest." Is that what is going on with the interpretations of Endrew F? I'm not sure. We all have some biases that affect how we view the world. We try to control these biases, but the mind can be a difficult thing to know. Are we all seeing just what we want to see? Or not?

Could this be an example of the deep division in our society today? Culturally, politically, racially and by gender and region, we are divided. We now even work from differing "facts." Is the divide between parents and school officials, especially in the five states that have 90% of due process hearings, so strong that we see different court decisions on the same pages? This would be bad if IDEA is meant to be a collaborative process between parents and school officials. Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005). Or maybe not? We were able to unite all eight generally divided justices in one unanimous opinion so this cannot be a liberal-conservative thing, can it? 

So what explains the discrepancy? Once again, I have many questions and few answers. What do you think?

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Back to the Future: Special Education Law 101 #SpEdLaw101 #disability

We periodically run a series here that is an introduction to special education law. Now seems like a good time to run an updated version of the series. So starting next week we will run the series.

We realize that many of you are new to the field, and we hope that this series will be very useful to you. We also realize that many of you have been in this field a long time, and we hope that this series is a useful refresher for you.

There are a lot of concepts and a bucket full of acronyms, but we find that it helps us ti keep sharp by periodically reviewing the basics. As the series progresses, please let us know what you think of it. Did we cover all important topics.  Did we explain the slippery concepts so that you could understand them?  As always, we love to hear from you.

While you are waiting for Special Education Law 101, here is Johnny Winter on Highway 101

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS