Of the two 2017 Supreme Court cases interpreting the Individuals with Disabilities Education Act, the importance of Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988, 69 IDELR 116 (Mar. 22, 2017), to Impartial Hearing Officers and State Review Officers seems obvious. Even though the Court did not overturn Board of Education v. Rowley, 458 U.S. 176 (1982), it rejected the Tenth Circuit’s application of that case to the situation of a child with a severe disability and it required a “markedly more demanding” standard than what the lower court had applied. All decisions involving free, appropriate public education claims will need to be reviewed under the Supreme Court’s Endrew F. standard.
Much less obvious is what significance, if any, Fry v. Napoleon Community Schools, 137 S. Ct. 743, 69 IDELR 116 (Feb. 22, 2017), ought to have for IHOs-SROs. There the Court heard a challenge to the application of the IDEA’s administrative exhaustion requirement, 20 U.S.C. § 1415(l), to a claim against a school for not allowing a child to bring a service dog to school. The Court overturned the dismissal of the claim under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act and remanded for further proceedings. Section 1415(l) requires exhaustion on non-IDEA claims “seeking relief that is also available under” the IDEA. The Court reasoned that the IDEA makes relief available for denials of free, appropriate public education. In deciding whether the lawsuit seeks relief for a FAPE denial, courts ought to look to the gravamen of the complaint actually filed in court, rather than asking whether the parents could have filed an action seeking relief under the IDEA. The Court identified clues for telling if the substance of the claim is for denial of FAPE. It is not FAPE if essentially same claim could have been brought in a context in which no FAPE obligation is present, for example, if the same suit could be brought for access to a public library, or if a similar suit could have brought by an adult visitor to a school or a school employee. On the other hand, if the parents began administrative proceedings under the IDEA, that would be a clue that the denial of a FAPE is the substance of the complaint.
Of course, what hearing officers do is the administrative proceeding, and so hearing officers might wonder why they need to worry about a decision that concerns whether they can be bypassed. There are at least three reasons to be aware of Fry and give thought to what it means, however, even if ADA and Section 504 claims will remain outside the hearing officer’s jurisdiction.
- Fry is certain to raise awareness of ADA and Section 504 among the special education bar. As information about Fry filters down to lawyers who do special education cases, they will become more and more likely to add ADA and Section 504 claims to their cases, even when they take the cases through the IDEA administrative process. Whenever anything becomes widely known and discussed, some reaction is sure to follow. Applications to Northwestern Law School ballooned the year after Northwestern went to the Rose Bowl. Though IHOs and SROs may decide to do nothing on the claims, they will need to make clear for the record what they are doing. In a Texas case that originated in due process proceedings over a claim for violation of the IDEA, the court found Section 504 claims barred by the parent’s failure to exhaust, reasoning although the claims were included in the due process hearing request, the parent did not address them in the prehearing request for relief, and there was no decision on them from hearing officer. Reyes v. Manor Indep. Sch. Dist., 850 F.3d 251, 69 IDELR 147 (5th Cir. Mar. 7, 2017). It appears that the court may not have fully appreciated the reticence of a parent to present and the hearing officer to decide matters outside the hearing officer’s jurisdiction. Parent attorneys talking about ADA and Section 504 claims and including them in the due process hearing pleadings may be trying to make sure that they are not inadvertently waiving them.
- Perhaps as a corollary of the awareness-raising as to ADA and Section 504, hearing officers may encounter situations in which the parties try to induce them to make decisions on issues for the collateral effects of the decisions in later ADA and Section 504 proceedings, even if the issues are not of central relevance to the IDEA claim before the hearing officer. There are many cases applying preclusion principles to bar claims for relief under the ADA and Section 504 based on findings with respect to IDEA claims. A recent one is Crawford v. San Marcos Consol. Indep. Sch. Dist., No. A-13-CV-206 LY, 2015 WL 236653, 64 IDELR 306 (W.D. Tex. Jan.15, 2015), adopted, (W.D. Tex. Feb. 3, 2015), aff’d, 637 F. App’x 808 (5th Cir. Feb. 2, 2016). Hearing officers may want to exercise caution about making findings if they do not intend to have the findings control future litigation on non-IDEA claims involving the same child.
- Something that is more speculative, but may be of concern is the possibility that parties may try to use some of the language of Fry to contract the hearing officer’s jurisdiction in dubious ways. In limiting the scope of the exhaustion requirement, Justice Kagan’s majority opinion declared that “the only ‘relief’ the IDEA makes ‘available’ is relief for the denial of a FAPE.” Fry, 137 S. Ct. at 755. One can imagine a party trying to exclude an claim from the due process hearing on the ground that it is not asserting “a denial of a FAPE” but rather a violation of another IDEA requirement not specifically designated as FAPE, such as a failure of notice or other procedure. Whatever the scope of FAPE for application of the exhaustion requirement, when it comes to hearing officer decision making, FAPE has a very broad scope indeed. The statute provides that a due process hearing request may be made “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child,” 20 U.S.C. § 1415(b)(6)(A), and among other things, it makes explicit that denial of FAPE embraces procedural violations, id. § 1415(f)(3)(E)(ii).
So Fry may matter.