January 2018 Newsletter – School Districts
New Standards for Accommodation of Children with Disabilities under the IDEA and ADA
Under the Individuals with Disabilities Education Act (“IDEA”), public schools are required to provide children with free appropriate public education. To accomplish that, schools put together a group of school officials, teachers and parents to create an individualized education program for each child. Called an “IEP,” the program documents the child’s current level of academic achievement, specifies goals for the child to make progress in the general education curriculum, and lists special education and services the child is to be provided to advance towards those goals.
In Smith v. Robinson (1984) 468 U.S. 992, the United States Supreme Court held that the IDEA foreclosed students’ claims under the Americans With Disabilities Act (“ADA”) and other federal claims. The Court held that the IDEA was the “exclusive avenue” through which a disabled child or parents could challenge the adequacy of a child’s education.
In response, Congress amended the IDEA. At 20 U.S.C. §1415(l), the statute now reads:
Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], title V of the Rehabilitation Act [including §504], or other Federal laws protection the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relieve that is also available under [the IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under the [the IDEA].
In the recent case of Fry v. Napoleon Community Schools (2017) ___ U.S. ___, Case No. 15-487, the United States Supreme Court for the first time interpreted what was meant by this amendment to the IDEA. In Fry, a child with cerebral palsy sought to have her trained service dog help her function in a public kindergarten class. Under her IEP, a human aide provided the child with one-on-one support throughout the day. Her IEP team determined that the dog was superfluous because all of the child’s needs were met by the human aide already provided.
The parents filed a complaint with the U.S. Department of Education’s Office for Civil Rights, charging that the exclusion violated the child’s rights under the ADA and the Rehabilitation Act. After an investigation, the Office for Civil Rights agreed, analogizing the situation to requiring a child who used a wheelchair to be carried by an aide instead. The school then agreed to allow the child to come back; however, the parents felt that the school would resent their child due to the rebuke, and make her return to the school difficult. The parents therefore sent their child to a different public school in a different district where the child and her dog were “enthusiastically received.”
The parents filed suit for violation of the ADA and Rehabilitation Act. The lawsuit sought recompense for the harm caused by the discrimination, including emotional distress, pain and mental anguish. The District Court granted the school’s motion to dismiss, holding that the family first had to exhaust the administrative procedures of the IDEA. The Sixth Circuit agreed, holding that where the harms were “educational” in nature, the family had to exhaust the IDEA’s administrative procedures.
The United States Supreme Court reversed the decision. The Court examined the purposes and scope of the IDEA and ADA. The Court created a two question analysis to determine whether exhaustion of the IDEA procedures were required prior to bringing a claim under the ADA or other statutes. First, could the plaintiff have brought essentially the same claim if the conduct occurred at a public facility that was not a school? Second, could an adult at the school, such as an employee or visitor, have pressed essentially the same claim? If the answer to both questions is “yes,” then there is no requirement to exhaust the IDEA procedures before proceeding to Court. If the answer to either question is “no,” then exhaustion will usually be necessary. The main rational was that the IDEA applied only to children with disabilities and public schools, while the scope of the ADA was broader. In the case before the Court, the child could have made the same claims of failure to accommodate a disability against a non-school facility denying admission to her service dog, and an adult employee could bring a claim against a school that denied the adult the use of a service dog. Therefore, the Court reversed and remanded the case for further proceedings. The Court left unanswered the related question of whether the family’s initial pursuit of IDEA administrative remedies before bringing suit required that the remedies be exhausted, leaving that question to the lower courts on remand.
As a result of this decision, the parents of students with disabilities may go directly to Court under the ADA, even if they have not utilized the IDEA process. Further, instead of collaboratively putting together an IEP, the determination of whether an accommodating is “reasonable” would be determined by a jury under the ADA. Specifically, creating an IEP is a group process to determine how the student will progress towards set goals, while the determination under the ADA as to what constitutes a “reasonable accommodation” for the school to provide students to meet their individual needs and allow them to participate to the same extent as students without disabilities will be made by a jury after a trial. Also, regardless of whether the public school wins or loses, it will be required to expend money for litigation costs. In addition, the jury may award significant damages and payment of the student’s legal fees and costs.
No one can avoid lawsuits entirely if someone wants to sue. However, given the uncertainty and potential exposure to liability, and assuming that the parents are primarily interested in doing what is best for the child, the best practice would be to cultivate a good working relationship with the parents in the IEP group, assure them that their concerns are being met to the extent possible, and attempt to integrate the child into the general student population as much as possible by providing needed accommodations. If the parents feel that their concerns are being met and that the school is making responsive and reasonable efforts in the IDEA process rather than creating roadblocks, they are less likely to seek or prevail in litigation under the ADA.
For more information regarding this article, please contact Ken Baisch at firstname.lastname@example.org. For questions in general regarding this newsletter, please contact Kristina Limon at email@example.com.
This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.