Last week the Supreme Court decided Endrew F. v. Douglas County School District,[1] which held that the Individuals with Disabilities Education Act (“IDEA”) requires schools to provide students with disabilities an Individualized Education Program (“IEP”) reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.[2] The decision was a victory for students with disabilities because it broadened the protections afforded students by the IDEA. Advocates for students with disabilities would be wise, however, to heed the Court’s advice in an opinion written exactly one month prior to Douglas County before seeking all of the accommodations needed by a student within the student’s IEP.
The Fork In The Road: Choosing Where to Bring a Request for an Accommodation
In Fry v. Napoleon Community Schools[3] the Court considered whether a school discriminated against a student because of her disability when it prohibited her service animal from school property. Not surprisingly, the Court found that it did. The reach of the Court’s opinion is far broader than that narrow issue, and the Court provided a template for advocacy and litigation strategies for students with disabilities.
Fry involved a student with a disability who claimed that her school discriminated against her because of her disability by denying her the use of her service animal. The school argued, among other things, that the student was required to proceed through the IDEA’s lengthy administrative appeals process before she could file her lawsuit in court. The IDEA sets forth a unique process under which parents, school officials, and others create an IEP that identifies the special education services the school will provide to ensure the student is receiving a “free and appropriate public education” (“FAPE”). When a dispute arises as to whether the school is providing services sufficient to ensure FAPE, the IDEA requires students and parents to go through a lengthy series of administrative appeals with local and state agencies before they can file suit in court.
The Key: Free and Appropriate Public Education
In Fry, the Supreme Court disagreed with the school, and found that the student was not required to complete the administrative appeals process before filing suit because the relief sought—access to her trained service animal—was available under both the Americans with disabilities Act (“ADA”) and § 504 of the Rehabilitation Act, and was not available under the IDEA. Instead, the Court held that the IDEA’s administrative appeals requirements only apply to students who are seeking FAPE, which is the sole relief available under that Act.[4] When a student seeks relief available under another statute, such as the ADA or §504, then the student can seek redress in court immediately.
Importantly, the Court provided guidance, in the form of two hypothetical questions, for determining when a lawsuit seeks FAPE:
“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?”[5]
These two questions seek to identify whether the relief sought is educational in nature, so that it would be required to be brought as part of the IDEA’s IEP process, or is more general in nature, so that it is not part of FAPE and is not required to be brought under the IDEA.
Forming A Strategy for Advocating for Students with Disabilities
In its opinion, the Court has created a figurative fork in the road for advocates of students with disabilities, with one path leading to FAPE, and the other leading to any other remedies. Advocates would be wise to follow this guidance before initiating any action with the school, and determine whether the advocacy is required to be brought as part of the IDEA’s IEP process, or whether they can pursue the remedy separately, for several reasons. First, as the Fry case illustrates, raising general discrimination remedies in the IEP process encourages schools to analyze the request for an accommodation incorrectly, which increases the likelihood of an improper result. Whether the ADA mandates that a person with a disability can bring a trained service animal into a governmental building is almost always determined in the person’s favor and typically would not result in a case reaching any court, let alone the Supreme Court. In this case, however, the school applied an IDEA “educational services” analysis rather than an ADA “accommodation” analysis, and reached a wrong conclusion. Second, seeking relief under the ADA or §504 may provide more leverage to students and parents, particularly because it does not involve a lengthy administrative appeals process, and allows them to recover their attorneys’ fees and costs incurred if they prevail. Finally, and perhaps most importantly, as the Supreme Court warned, courts can look to whether the student and parents requested the relief during the IEP process to determine whether the student is seeking FAPE. Thus, advocates who choose to seek relief in an IEP meeting may be losing the ability to seek that same relief outside of the IDEA, even if the relief could have been sought through the ADA or §504. Thus, the first step in advocating for any student with a disability should be to determine which statute provides the best opportunity for achieving the relief sought.
[1] No. 15-827 (Mar. 22, 2017).
[2] Id., pp. 9-16.
[3] No. 15-497 (Feb. 22, 2017).
[4] Id. at pp. 9-18.
[5] Id. at p. 15