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Exhausting Your Remedies is Exhausting!

by Mike Leasor

In Fry v. Napoleon Cmty. Sch., No. 15-497 (U.S. Feb. 22, 2017), the U.S. Supreme Court, in an 8-0 ruling, held that the exhaustion of the IDEA’s administrative remedies is unnecessary where the gravamen of the plaintiff’s lawsuit is something other than the denial of the IDEA’s core guarantee of FAPE.

E.F. suffers from cerebral palsy and was prescribed a service dog (Wonder) to assist her with everyday tasks. Her school, which provided her with a human aide as part of her Individualized Education Program (IEP) under the IDEA, refused to permit her to bring her service dog to school.

The Frys then began homeschooling E.F. and subsequently filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) under the ADA and §504 of the Rehabilitation Act. Two years later, in May 2012, OCR found that the school’s refusal to permit Wonder to attend school with E.F. was a violation of the ADA. At that time, without accepting the factual or legal conclusions of OCR, the school agreed to permit E.F. to attend school with Wonder starting in the fall 2012.  The Frys then filed suit pursuant to Title II of the ADA and §504, seeking damages for the school’s refusal to accommodate Wonder between the fall of 2009 and the spring of 2012.

The Frys alleged the following particular injuries: denial of equal access to school facilities, denial of the use of Wonder as a service dog, interference with E.F.’s ability to form a bond with Wonder, denial of the opportunity to interact with other students at Ezra Eby Elementary School, and psychological harm caused by the defendants’ refusal to accommodate E.F. as a disabled person.

The district court granted the defendants’ motion to dismiss, finding that the IDEA’s exhaustion requirements applied to the Frys’ claims and dismissed the claims. The court noted that although the Frys did not specifically allege any flaws in E.F.’s IEP, if she were permitted to attend school with Wonder, that document would almost certainly have to be modified in order to articulate the policies and practices that would apply to the dog. Therefore, the Frys’ request for permission for E.F. to attend school with Wonder “would be best dealt with through the administrative process,” and exhaustion was required. Because the Frys had not exhausted IDEA administrative remedies, the district court dismissed their suit. The Frys timely appealed.

A U.S. Court of Appeals for the Sixth Circuit panel, in a 2-1 decision, affirmed the lower court’s decision dismissing the §504 and ADA claims. The panel’s majority concluded that the IDEA’s exhaustion requirement applied to the Frys’ claims. It stated that “the nature of the Frys’ claims required them to exhaust IDEA procedures before filing suit under the ADA and the Rehabilitation Act.” Crucial to the majority’s conclusion that exhaustion of administrative remedies was required, was its determination “in effect that E.F.’s school’s decision regarding whether her service animal would be permitted at school denied her a free appropriate public education.”  Again, the Frys timely appealed.

 The Supreme Court in its decision advanced two positions: (1) To bring a suit under IDEA, the plaintiff must seek relief for the denial of FAPE because that is the only relief available under IDEA; and (2) “[I]n determining whether a suit indeed ‘seeks’ relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff’s complaint.”

According to the opinion, a determination of whether the exhaustion requirement applies must go beyond the surface of the complaint to examine the substance. The Court pointed to two “clues” to discovering whether the gravamen of a complaint concerns denial of FAPE or, instead, focuses on disability-based discrimination addressable under Title II of the ADA or §504:  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?

The Court concluded that if the answer to both is yes, then it is unlikely that the complaint concerns FAPE. However, if the answer to both is no, it is probable that the complaint does concern FAPE.

The Court stated further that another sign that the gravamen of a complaint involves the denial of FAPE is when the history of the proceedings reveal that the “plaintiff … previously invoked the IDEA’s formal procedures to handle the dispute—thus starting to exhaust the Act’s remedies before switching midstream.” She noted that “prior pursuit of the IDEA’s administrative remedies will often provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.”

Turning to the Frys’ complaint, the Court pointed out that it might not require exhaustion, but that there was important information missing that required remanding the issue to the Sixth Circuit. It pointed out that the complaint contains no allegation about the denial of a FAPE or about any deficiency in E. F.’s IEP. The Court also noted that the complaint “does not accuse the school even in general terms of refusing to provide the educational instruction and services that E. F. needs.”  It concluded that nothing in the nature of the Frys’ suit suggests any implicit focus on the adequacy of E. F.’s education. It conjectured that “the Frys could have filed essentially the same complaint if a public library or theater had refused admittance to Wonder.”  Thus, the Supreme Court determined that administrative remedies did not need to be exhausted based on the information at hand, but then remanded the case back to the Circuit Court to determine if the Frys had ever pursued administrative remedies in the first place.

Although confusing, this case is instructive as it gives school districts guidance as to when a “failure to exhaust administrative remedies” argument might be a waste of energy and resources.  Unfortunately, the decision could also be read as providing a roadmap on how to package a claim to avoid an otherwise suitable administrative remedy.  This could have the effect of dramatically increasing the number of cases that end up being litigated in federal courts, as opposed to the (relatively) more efficient due process hearings system.  If you or your staff have additional questions on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.