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Supreme Court Holds IDEA Exhaustion Not Required When Crux of Complaint Is Not a Denial of FAPE

K-12 Education Publications

The Supreme Court issued its opinion in Fry v. Napoleon yesterday. The case (which we previewed in this alert) asked the court to interpret the IDEA provision stating that the Act does not limit the rights or remedies available under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act, but requires parents to exhaust the IDEA procedures prior to filing suit under the ADA or Section 504 when seeking relief that is also available under the IDEA. The Court held that “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.’”

The three acts have significant similarities and overlap, but also have important differences. The ADA forbids public entities, including schools, from discriminating based on disability. Section 504 applies to federally funded programs and activities, including public schools, and also prohibits discrimination based on disability. The regulations implementing these statutes require that schools and other covered entities make “reasonable modifications” to “policies, practices, or procedures” to avoid such discrimination. Both statutes cover people with disabilities of all ages both inside and outside of schools.

The IDEA, in contrast, requires that children with disabilities be provided a free and appropriate public education: meaningful access to education via individualized instruction and related services appropriate to the student’s unique needs. The Court explained that while some actions by a school might violate all three laws, it is also possible that denial of a requested accommodation could violate the ADA and Section 504 but not be a denial of FAPE under the IDEA.

The Court determined that when the “lawsuit seeks relief for the denial of a free and appropriate public education, …the plaintiff cannot escape the [IDEA procedures] merely by bringing her suit under a statute other than the IDEA.” Whether the suit uses the words FAPE or IEP is not determinative. Instead, to guide lower courts applying the rule, the Court set out two hypothetical questions. “First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school–say, a public theater or library? And second, could an adult at the school–say, an employee or visitor–have pressed essentially the same grievance?” If the answers are yes, then the complaint is unlikely truly about a denial of FAPE; while if the answers are no, the complaint probably does concern FAPE. The Court stated that another clue is the history of the proceedings; whether the parents previously attempted to address the issue through the IDEA procedures.

Turning to the facts of the case (the school refused the parents’ request to have the student’s service dog accompany her in school), the Court found that the complaint did not appear to concern FAPE and both questions could be answered yes. But the Court remanded the case to the lower court to consider the history of the proceedings and determine whether the parents’ actions prior to filing suit revealed that the crux of their complaint was indeed a denial of FAPE.

In a footnote, the Court explained that it was not deciding whether exhaustion is required when a complaint alleges a denial of FAPE but requests relief that is not available under the IDEA (such as money damages for emotional distress). The Solicitor General, in its amicus brief for the United States, argued that exhaustion should not be required in such a case. While the rule established by the Court would seemingly require exhaustion in such a case, the Court stated that it is not deciding that issue.

Justices Alito and Thomas concurred. They joined the opinion except for the guidance regarding the hypothetical questions and procedural history. They expressed concern that these clues may instead “confuse and lead courts astray.”

Prior to this case, the Seventh Circuit required IDEA exhaustion when “both the genesis and the manifestations of the problem are educational.” We will see in future cases whether the application of the Supreme Court’s rule–whether the essence of the complaint is a denial of FAPE–will lead to different results in practice.

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