In 2017, the Supreme Court issued an opinion, Fry v. Napoleon, stating that unless parents/guardians seek relief that is also available under the IDEA, they need not exhaust IDEA procedures by filing a complaint for a due process hearing before filing a lawsuit under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. The Supreme Court sent the case back to the Michigan federal trial court so that it could collect more facts and apply the “Fry tests” that the Supreme Court set forth in the case. Earlier this month, the trial court ruled in favor of the Frys, finding that the parents’ claims were not subject to the IDEA’s exhaustion requirement because the parents were not claiming a denial of a free, appropriate public education (or “FAPE). The decision makes clear how important it is for school districts to identify requests for accommodation that are related to access and equity (and not the denial of a FAPE) from early on in the process and to handle them as required by Section 504 and the ADA. It also highlights the importance of ensuring that documentation regarding requests for accommodation thorough and clear. For more on the next chapter in this important Supreme Court case, keep reading!
The 2017 Supreme Court Decision
The 2017 Fry Supreme Court decision involved a complaint by the parents of an elementary school student, E.F., whose school denied her request to bring her service dog, Wonder, to school. The Frys asked a federal trial court to declare that the school district violated the student’s rights under Section 504 and the ADA and award the family monetary damages and attorney fees. The school argued that the Frys case should be dismissed because the parents had not exhausted IDEA due process before going to court. The IDEA, at 20 USC 1415 (l), says parents may sue a school district for violating the U.S. Constitution, the ADA, Section 504, and other Federal laws protecting the rights of children with disabilities, but only if they first file a due process complaint if they are “seeking relief that is also available under” the IDEA.
As we explained in our summary of the Supreme Court decision in 2017, the Supreme Court held in Fry that:
“exhaustion is not necessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee—what the Act calls a ‘free appropriate public education.’”
Because relief for the denial of a FAPE is the only relief that an IDEA hearing officer can give in an impartial due process hearing, IDEA exhaustion is only required if a lawsuit seeks relief for the denial of a FAPE.
The “Fry Tests”
The Supreme Court set out three considerations to be used to determine if a parent’s complaint seeks relief for the denial of a FAPE:
First, the “central inquiry” in each case is the “plaintiff’s own claims,” so a court or hearing officer must examine whether the principal instrument by which the parents describe the case seeks relief for a denial of a FAPE.
Second, the Court posed a few questions that can be asked to help decide whether the complaint is seeking such redress:
“Could the parent have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school, such as a public theater or a library?
Could an adult at the school, such as an employee or visitor, have raised the same complaint?”
If the answer to those questions is yes, it is likely that the complaint does not expressly allege the denial of a FAPE. If the answer to the questions is no, the complaint probably does concern a FAPE, even if the complaint does not explicitly include a FAPE allegation.
Third, the Court said to consider whether the parents previously invoke the IDEA’s formal procedures to handle the dispute—thus starting to exhaust the IDEA’s remedies before switching midstream. If they did, that might suggest that the complaint is a FAPE claim. The Supreme Court explained:
A plaintiff’s initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a FAPE—with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy. Whether that is so depends on the facts; a court may conclude, for example, that the move to a courtroom came from a late-acquired awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely. But prior pursuit of the IDEA’s administrative remedies will often provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.
The Supreme Court included some analysis of how the first two of the three Fry tests applied to the facts of the case, but ultimately believed the trial court needed to collect more facts before deciding if the fact that the Frys had switched from the IDEA process to a Section 504/ADA lawsuit “midstream” meant they were required to exhaust remedies under the IDEA before going to court.
The March 2019 Trial Court Decision
Applying the Fry tests, the trial court found the following:
- Complaint Allegations: The trial court noted that the Supreme Court had already determined that the Frys’ complaint contained no allegations about the denial of a FAPE, deficiencies in the student’s IEP, or any other reference to the adequacy of the special education services the school provided. Instead, the complaint alleged only disability-based discrimination.
- Hypothetical Questions: Similarly, as the Supreme Court had noted, the Frys could have filed the same complaint if a theater or library had refused to admit the disabled student’s service animal and that an adult visitor to the school could have filed a complaint if the school prevented her from entering with her service dog. As the trial court explained, “The substance of Plaintiff’s complaint is that, regardless of whether she was provided a FAPE, Defendants violated her rights under the ADA/Section 504 by denying her access to school with her service dog.
- History of the Proceedings: The trial court found that the Frys began discussing the issue of Wonder going to school with E.F., from the start, as an access issue under the ADA and Section 504. The Frys only began using the IDEA’s procedures, including engaging in mediation under the IDEA, after the school called and IEP meeting. As the trial court explained, “[a school administrator] testified that any time a parent asks for an accommodation, they would convene an IEP meeting.” Accordingly, the school district, not the Frys, “invoked the IDEA’s procedures. When the Frys’ attorneys advised them that an IDEA hearing officer would have no power to decide whether Wonder was a service animal under the ADA, would not be able to decide or if E.F.’s use of Wonder would be a reasonable accommodation under the ADA, and would not be able to grant the family any compensatory damages under the IDEA, which does not authorize monetary damages, it was reasonable for the family to switch directions and file suit under Section 504 and the ADA. Because there was no evidence to indicate that the Frys filed suit in federal court as a strategic calculation to maximize the prospect of a remedy for the denial of a FAPE, the court concluded that the Frys’ complaint was not subject to the IDEA’s exhaustion requirements.
Key Takeaways for School
This newest decision in the saga of Wonder the service dog is a reminder to school districts of the importance of determining early on in a matter whether a parent is raising equal access issues under Section 504 or the ADA as opposed to issues relating to a student’s education or a denial of a FAPE under the IDEA. As noted above, the court found that the reason the parties improperly focused on IDEA procedures in the Fry case was because the school invoked those procedures under its normal practices.
School leaders should audit policies and procedures now to ensure that administrators, teachers, and staff will understand when an analysis under Section 504 is required in cases involving a student with an IEP. The Section 504/ADA discussions can occur during an IEP meeting, but they must address head on the issues of equal access under Section 504 and the ADA.
As always, thorough documentation of the reason that any request was granted or denied is important. And schools should continue to remain aware that they may now have to fight battles for certain students with disabilities in both IDEA due process and the courts of law—in some cases, simultaneously. For more information on this and other special education and disability issues, contact Dana Fattore-Crumley, Jennifer Smith, Kathryn Vander Broek, or any other member of the Franczek special education team.