On February 22, 2017, the United States Supreme Court unanimously ruled that IDEA’s exhaustion requirement only applies when a complaint’s central issue is denial of FAPE. Fry v. Napoleon Community Schools, et al. 117 LRP 5990 (Feb. 22, 2017)
Student is a 5 year old with cerebral palsy who uses a service dog while attending school. Under the student’s IEP, a human aide provided one-on-one support throughout the day rendering use of the service dog redundant.
Parents, wanting Student to maintain use of the service animal, removed Student from school and filed a complaint with the Office of Civil Rights (OCR). OCR determined that refusal to permit the service dog onto campus violated Student’s rights under the ADA and Section 504.
When Parents feared disparate treatment due to the return of the dog, they enrolled Student in a different school district. Parents then filed suit against the original school district alleging violation of the ADA and Section 504, including discrimination, seeking money damages for Student’s emotional distress and pain, embarrassment, and mental anguish.
The lower court ruled that Parents were required to first exhaust the administrative procedures under IDEA’s due process protections before they could file a lawsuit.
Is a parent required to exhaust the administrative remedies under the IDEA before filing a separate lawsuit?
No, IDEA’s exhaustion requirement only applies when the complaint’s central issue is a denial of FAPE.
Generally, the IDEA does not restrict Parents from seeking redress under other federal laws like Section 504 or the ADA. However, the IDEA does require parents to first exhaust the IDEA’s administrative procedures if relief is sought under a separate law. In this case, the Supreme Court held that filing first under IDEA is only required if the parent’s central dispute is regarding FAPE. To make this determination courts are required to ask two questions:
- Could the student assert the same claim against a public entity other than a school, such as a library?
- Could an adult at the school assert the same claim against the district?
If the answer to those questions is yes the claim is unlikely to involve a denial of FAPE, and no exhaustion of IDEA procedures is required. Therefore, this decision may increase use of Section 504, the ADA, or civil remedies for money damages without using the IDEA’s due process procedures.
Disability Discrimination Claims Under the ADA and Section 504 - School District May be Found Liable for Actions of its Employees Even if Unaware of the Conduct
On November 8, 2016, in K.T. v. Pittsburg U.S.D., District Court for the Northern District of California refused to dismiss a student’s claim for disability discrimination under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The District Court denied the school district’s motion to dismiss because its employees allegedly engaged in discriminatory conduct based on the student’s disability, and under the ADA and the Rehabilitation Act, a public entity is responsible for the acts of its employees.
K.T. is a 10 year old elementary school student who has been diagnosed with autism, ADHD, and an intellectual disability. K.T. understands when spoken to, but has difficulty expressing herself and often puts inedible items in her mouth. K.T. had a one-on-one instructional aide in a general education classroom.
K.T. and her parents alleged that her general education teacher and her one-on-one aide engaged in repeated acts of physical and verbal abuse. These acts included grabbing K.T. roughly, pushing and pulling her, and even “slap[ping] her across the face and kick[ing] her buttocks.” K.T. also alleged that at one point The acts were witnessed by several individuals on at least four occasions. When the abuse was reported, the district placed the aide on administrative leave. Upon being questioned, school staff, including the aide, said that K.T.’s disability justified their behavior towards her.
Since the abuse occurred, K.T. has “regressed verbally and behaviorally,” “fears going to school,” and engages in self-harming behavior. K.T. and her parents brought suit, alleging (among other claims) that the school district discriminated against her because of her disabilities.
To establish a disability discrimination claim under the ADA, a plaintiff must plausibly allege that she is a “qualified individual with a disability” and that the District denied her benefits or services “by reason of” her disability. The standard is the same under Section 504, except that a plaintiff must allege that the denial of benefits or services was “solely by reason” of her disability.
Here, the District Court denied the school district’s motion to dismiss K.T.’s disability discrimination claims under the ADA and Section 504. Although the school district argued that “no one high enough in the chain of command knew about the abuse and failed to act” and therefore it “was not deliberately indifferent to K.T.’s rights,” the District Court stated this was not the applicable test. The District Court found that under the ADA and Section 504, the school district was liable for the actions of its employees, and that K.T. need only allege (at this point) and show (at trial) that the school district’s employees—the teacher and the instructional aide—“knew about K.T.’s disability but. . . still went forward with the alleged abuse.” Because the abusive conduct
- While the conduct alleged in this particular matter may be extreme, it is nonetheless illustrative of the fact that a school district may be found liable for the conduct of its employees in a disability discrimination claim under the ADA and Section 504.
- The fact that the administration was unaware of the allegedly abusive conduct was not enough to eliminate the district’s liability under the ADA and Section 504.
- The fact that the school district immediately placed the instructional aide on leave when the inappropriate conduct was reported also did not absolve the district of its liability.
For more information about how to avoid disability discrimination and learn best practices regarding this topic, don’t miss GIRARD, EDWARDS, STEVENS & TUCKER LLP’s upcoming Special Educational Legal Seminar to be held on Monday, February 27, 2017 from 9:00 a.m. – 3:00 p.m. in Sacramento, CA. Registration information can be found at www.regonline.com/GESTspedlegalseminar.
Procedural Violations Around Disciplinary Removals of Students with Disabilities May Be a Denial of FAPE
The laws governing the provision of special education and related services to students with disabilities are full of complex procedures. When a local educational agency commits certain procedural violations, it may deny the child a free appropriate public education (“FAPE”), which means the LEA loses the case in litigation. Among the fundamental procedures that schools must follow is the requirement to convene a manifestation determination review meeting when the school decides to change a student with disabilities’ placement due to a violation of school rules.
For example, in East Side Union High School District and Santa Clara County Office of Education (OAH Case No. 2016061098) (December 21, 2016), the hearing officer held, among other things, that the District’s failure to convene a manifestation determination meeting was a violation of IDEA. Specifically, Student was a 16 year old male student who was eligible for special education under the category of other health impaired and emotional disturbance. A teacher overheard Student discussing smoking marijuana with another student and discovered two lighters in his pocket. Student was taken to an administrator’s office where he became confrontational and told the staff “You better watch your back” and “You’re going to get what’s coming to you.” Law enforcement was called and Student was removed from campus.
Following this incident, staff reported that they did not feel safe in Student’s presence. As a result, the school imposed a five-day suspension for the incident but Student was not allowed to return to school at the end of the five days. Instead, the school offered to place Student on “home instruction” as the only option for Student to continue to receive an education, and the parent agreed. However, this was accomplished without an IEP team meeting or manifestation determination review meeting, or any discussion of an interim alternative educational setting. Student remained on “home instruction” for approximately two months periodically receiving instructional packets and assignments and returning some of them, but did not receive any services from a teacher. In doing so, the hearing officer determined that the District’s failure to follow proper procedure violated IDEA.
The hearing officer held that the District’s failure to convene a manifestation determination meeting prior to changing placement was a procedural violation of the Student’s and Parent’s rights. The hearing officer reasoned that although the parent signed a document placing the student on “home instruction,” she did so because she was told that was the only way Student could continue to receive an education, not because she was waiving her right to any IDEA procedures. The hearing officer explained that if a manifestation determination meeting had occurred, the likely outcome would have been that Student’s disabilities were related to his conduct, and he would have had a right to return to school and receive a functional behavior assessment and perhaps a revised behavior plan, or alternatively at least the IEP team would have been able to discuss an appropriate interim alternative educational setting.
For more information about how to avoid these sort of procedural missteps and learn best practices for handling discipline of students with disabilities, don’t miss GIRARD, EDWARDS, STEVENS & TUCKER LLP’s upcoming Special Educational Legal Seminar to be held on Monday, February 27, 2017 from 9:00 a.m. – 3:00 p.m. in Sacramento, CA. Registration information can be found at www.regonline.com/GESTspedlegalseminar.
On August 5, 2016, the California Office of Administrative Hearings, Special Education Division, released its fourth quarterly report detailing special education filing activity for 2015-2016. This report provides some statistical insight into the complex nature of special education disputes and litigation.
|Due Process Hearing Requests:||4,364|
|Fully Adjudicated Hearings:||111|
|Percentage of Cases with Hearing Held:||3%|
|Percentage of Cases Settled at Mediation:||61%|
|District Due Process Filing:||558|
|Student Due Process Filing:||3,806|
Based on the above statistics a vast majority of Due Process filings are settled before reaching a hearing decision. Indeed, only 3% of all due process filings are fully adjudicated. Most filings are initiated by the student. Also noteworthy, is the number of split decisions.
As with most types of litigation, special education due process filings are frequently resolved before a hearing. As these numbers detail, most cases are settled at mediation. Additionally, when a hearing is held, the student prevailed or a split decision was issued approximately 60% of the time.
For special education administrators, these numbers highlight the risks and expenses of an adjudicated hearing. When a student prevails or a decision is split, the local educational agency (LEA) is commonly left to pay the student’s attorney’s fees. In 2015-2016, approximately 83% of students were represented by counsel. This means that when an LEA stands before OAH in a special education dispute, they are most likely going to pay at least some of the student’s attorney’s fees.
Finally, these numbers highlight the importance of mediation. Although, 61% of cases reach agreement at mediation, that number could be higher. LEAs that come to mediation prepared with an offer and alternatives previously mapped out will use the time in mediation more efficiently and increase their opportunities to avoid an expensive hearing.