Defining the Scope of the IDEA's Exhaustion Standard

David Burrow; Ashley VanDercar; Sherif Soliman

The Individuals with Disabilities Education Act's Exhaustion Standard Applies to Civil Suits Only When the Plaintiff's Claim Seeks Relief for Failure to Provide a Free Appropriate Public Education

In Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017), the U.S. Supreme Court vacated a Sixth Circuit Court of Appeals' dismissal of a suit, brought by Stacy and Brent Fry, parents of a child (E.F.) with severe cerebral palsy, under Title II of the American with Disabilities Act of 1990 and § 504 of the Rehabilitation Act of 1973. The case was based on a school administration's refusal to allow E.F.'s service dog to accompany her to class. The lower courts had dismissed the case for failure to exhaust the administrative procedures delineated in § 1415(l) of the Individuals with Disabilities Education Act (IDEA). The Supreme Court held that the IDEA's exhaustion standard applies only when the gravamen of a complaint is denial of a Free Appropriate Public Education (FAPE); only then can the IDEA provide a remedy. The Court remanded the case to the Sixth Circuit to determine whether the Frys were seeking relief for the denial of a FAPE.

Facts of the Case

Mr. and Mrs. Fry's child, E.F., had severe cerebral palsy that impaired her mobility and other motor skills. At her pediatrician's recommendation, the Frys obtained a trained service dog, Wonder, to assist E.F. Wonder allowed E.F. to gain a degree of independence, helping her open doors, transfer to and from the toilet, and perform other life activities.

The administration of Ezra Eby Elementary School in Napoleon, MI, denied the Fry's request to allow Wonder to accompany E.F. to kindergarten, claiming Wonder's presence was unnecessary because a human aide provided adequate one-on-one assistance. In response, Mr. and Mrs. Fry began homeschooling E.F. and lodged a complaint with the U.S. Department of Education's Office for Civil Rights (OCR). The OCR is a branch of the Department of Education which enforces federal civil rights laws. The Frys alleged that the school's refusal to accommodate Wonder violated Title II of the American with Disabilities Act (Title II), 42 U.S.C. § 1213 et seq (2008) and § 504 of the Rehabilitation Act (§ 504), 29 U.S.C. § 794 (2009). The OCR agreed, finding that even if a human aide satisfied the IDEA FAPE requirement, the school's actions constituted discrimination.

In response to the OCR decision, the school agreed to allow Wonder to accompany E.F. at school. However, after meeting with the school administration, Mr. and Mrs. Fry became concerned that administrators would resent E.F. and moved her to a different school.

Mr. and Mrs. Fry, on behalf of E.F., filed a federal civil suit against the school principal as well as the local and regional school districts (the school), alleging violations of Title II and § 504. The Frys requested a declaratory judgment and monetary damages. The school moved to dismiss based on the Frys' failure to exhaust the IDEA's administrative procedures. The district court granted the motion to dismiss; the Sixth Circuit affirmed the dismissal, ruling that exhaustion is required when the alleged injuries are “educational” in nature and, thus, related to the substantive protections of the IDEA. The Frys petitioned the U.S. Supreme Court for certiorari. Certiorari was granted to address the scope of the IDEA exhaustion requirement.

Ruling and Reasoning

In a unanimous ruling, the U.S. Supreme Court rejected the Sixth Circuit's interpretation of the IDEA's exhaustion requirement.

The IDEA provides states with federal funding in exchange for their providing a FAPE to children with disabilities (20 U.S.C. § 1412(a)(1)(A) (2015)). The Handicapped Children's Protection Act (HCPA) was passed in 1986, and amended the IDEA (20 U.S.C. § 1415(l) (2004)). The HCPA specifically states that the IDEA does not limit the rights or remedies available under other federal laws (e.g., Title II and § 504). However, it further specifies that if a plaintiff seeks relief “also available” under the IDEA he or she must exhaust the administrative procedures of § 1415 before filing a civil suit. Public schools must comply with the IDEA, Title II, and § 504.

The Court held that § 1415(l) only requires exhaustion of the IDEA's administrative procedures before the filing of a civil suit (e.g., under Title II or § 504) when a “suit seek[s] relief for the denial of a FAPE” (Fry, p 752). The text of § 1415(l) states that exhaustion is only required when a civil action seeks “relief that is also available” under the IDEA (Fry, p 750). The IDEA's administrative procedures examine whether a school has met its obligation to provide a FAPE; a hearing officer can only offer relief when a school fails to fulfill this obligation. Accordingly, the administrative procedures in § 1415 only need to be exhausted when a suit alleges failure to provide a FAPE; those are the only circumstances in which the IDEA has relief available. To determine whether this is the case, courts are to look at the gravamen, or substance, of a complaint.

The Court provided guidance for how to determine when a suit seeks relief for failure to provide a FAPE in the form of two “clues.” First, it gave two hypothetical questions lower courts can ask: “could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school … [a]nd second, could an adult at the school … have pressed essentially the same grievance?” (Fry, p 756, italics in original). If the answer is yes, and the case is not specifically alleging denial of a FAPE, exhaustion is not required.

Next, the Court suggested that when determining the gravamen of a complaint, lower courts should look at the procedural history. If the plaintiff initially used the IDEA's administrative procedures to handle the dispute and then switched in midstream to federal court, this is strong evidence that the gravamen of the plaintiff's complaint is denial of a FAPE.

Discussion

The question on the Frys' petition for certiorari was whether “the HCPA commands exhaustion in a suit, brought under [Title II] and [§504], that seeks damages—a remedy that is not available under the IDEA” (Petition for Writ of Certiorari, Fry, 137 S.Ct. 743 (No. 15-497)). The Court did not decide this point. In their opinion, they specifically left unanswered whether exhaustion is necessary when a complaint involves failure to provide a FAPE, but seeks a remedy not available in the IDEA (e.g., compensatory damages for emotional distress).

The Court's holding in Fry is based on an interpretation of the text and legislative history of the IDEA. Two landmark cases, Westchester Cty v. Rowley, 458 U.S. 176 (1982) and Irving Independent School District v. Tatro, 468 U.S. 833 (1984), were also based on the IDEA but significant changes in the landscape of special education law occurred between Rowley and Irving, and Fry.

The HCPA was passed in 1986 in direct response to Smith v. Robinson, 468 U.S. 992 (1984), which held that the IDEA (then the Education for all Handicapped Children Act, or EHA) was the “exclusive avenue” for challenging the adequacy of a disabled child's education (Smith, p 1009). The HCPA “overturned Smith's preclusion of non-IDEA claims while also adding a carefully defined exhaustion requirement” (Fry, p 750).

In Rowley, the suit was based on denial of a FAPE and occurred after exhaustion of administrative remedies. The holding in Rowley focused on defining a FAPE, but the case highlights the concerns raised by Justice Alito in his concurring opinion in Fry. He wrote that the “clues” given by the Court were misleading because they assumed there would be no overlap between the relief available under the IDEA and other federal laws. Applying the Fry clues to Rowley would yield conflicting results. A similar complaint could have been raised outside of a school or by an adult within a school. However, the case was explicitly about denial of a FAPE and used IDEA's administrative remedies.

In Irving, the Court was asked whether clean intermittent catheterization of a child with cerebral palsy was a “related service” under the EHA. The parents in Irving had filed suit under the EHA, alleging denial of a FAPE (which included “related services”), and under § 504 for exclusion of a handicapped person from a program receiving federal aid. The Court denied the § 504 claim as inapplicable, citing Smith, which was decided the same day.

The Court's holding in Fry is narrow: plaintiffs need only exhaust the IDEA's administrative procedures when seeking relief for failure to provide a FAPE. Title II defines service animals to include dogs that are trained to do work or perform tasks for the benefit of persons with psychiatric, intellectual, or other mental disability. It is, therefore, foreseeable that future court decisions will extend the Fry holding beyond cases involving cerebral palsy to those more relevant to forensic psychiatry (e.g., cases involving autism spectrum disorder or posttraumatic stress disorder).