The IDEA requires exhaustion of administrative remedies before bringing a due process complaint for the denial of a Free and Appropriate Education. But, what about a discrimination claim under the ADA or the Rehabilitation Act for the failure to accommodate the use of service dog in school? One may think the answer is obvious; that there is no duty to exhaust in such circumstances, but the statute is written in vague and conclusionary language which resulted in the Feb. 22, 2016 Supreme Court decision in Frey v. Napoleon Community Schools, ___U.S.____(Feb. 22, 2017), Download Fry v. Napoleon
While I will not bore you with the statutory language here, the Supreme Court basically adopted this common sense approach. The IDEA's exhaustion requirement hinges on whether the lawsuit seeks relief for a denial of a Free and Appropriate Education. If a lawsuit charges such a denial, exhaustion is not excused by seeking relief under a different federal statute. Stated another way, if a student wants to charge a denial of a Free and Appropriate Education as well as a discrimination claim, he or she must bring two separate complaints.
The Court also holds that a plaintiff cannot avoid the IDEA's exhaustion requirement by not pleading the denial of Free and Appropriate Education because courts should examine the substance of the complaint rather than the form used. As the Court explains, "[w]hat matters is the crux-or, in legal-speak, the gravamen-of the plaintiff's complaint…"
As many of you may know, there is another important IDEA case pending before the Supreme Court, Endrew F. v. Douglas County School District, No. 15-827. At issue in that case is what constitutes a Free and Appropriate Education under Rowley. This decision gave us a clue to the answer by explaining that Rowley requires that students be given "meaningful access to education based upon her individual needs." Slip Op. at 11.
Mitchell H. Rubinstein