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How is Fry playing out in the lower courts?

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In searching for a blog entry to do this week and striking out with my Lexis alert, I thought it might be interesting to see how Fry v. Napoleon Community Schools, discussed here, was playing out in the lower courts. When I did that, I came across the case of K.G. v. Bluff-Luton Community School District, decided by Judge Mark Bennett of the United States District Court for the Northern District of Iowa. If you ever have an opportunity to go to a CLE where he speaks, you will not be disappointed. He is extremely knowledgeable, funny, and says what is on his mind. As usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

K.G. had an IEP, a functional behavior assessment, and a behavioral intervention plan (BIP). The latter stating that when behaviors escalated students would be removed and furniture would be repositioned to keep him and others safe. K.G. while in the second semester of first grade refused to cooperate when it came time to switch from drawing to writing sentences. The incident rapidly escalated from there. School personnel tried a variety of techniques to de-escalate the situation, all of which failed. At no time were the students in the classroom removed. Eventually, it got to the point where school personnel physically moved K.G. across the carpet to get him away from a desk. When they did that, K.G. said “ow, my back.” He was then taken to the school nurse and his father came to pick him up. His parents took photographs of his back either that evening or the next morning. They also took him to Mercy Medical Center where a medical professional said that the injuries were consistent with inflicted forceful dragging and consistent with partial thickness skin burn from excessive force in dragging the child on a carpeted surface. Also, it was that person’s opinion the injuries were significant and indicative of injuries beyond the normal care and discipline of a seven-year-old child. The parents offered expert opinions that K.G. now suffered from posttraumatic stress disorder and other psychological and behavioral issues as a result of the incident. Subsequently, they enrolled him in a different school district. They also brought proceedings under IDEA but abandoned them to pursue the following claims: violation of the fourth amendment and 14th amendment for excessive use of force; violation of title II of the ADA; violation of §504 of the Rehabilitation Act; common-law general negligence; battery against one of the defendants; and intentional infliction of severe emotional distress against several defendants. The school district defended on the grounds IDEA was not properly exhausted. Plaintiff claimed exhaustion was not required under Fry v. Napoleon Community Schools.

II

Court’s Reasoning

A.  Judge Bennett’s review of Fry

  1. Judge Bennett turned to Justice Kagan’s opinion in Fry. In particular, Judge Bennett noted her admonition that exhaustion was not necessary where the substance of the complaint was something other than the denial of IDEA’s core guarantee of a free appropriate public education.
  2. Judge Bennett notes that Justice Kagan also said that magic words are not the key, rather the substance of the complaint is the critical focus.
  3. Judge Bennett then goes on to note the two hypothetical question that Justice Kagan asks in trying to figure out whether the situation involves a free appropriate public education or something else. In particular, the two situations are: 1) could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that wasn’t a school?; and 2) could an adult at the school, say an employee or a visitor, have pressed essentially the same grievance? If both questions are answered yes, then a free appropriate public education is probably not involved.
  4. Judge Bennett goes on to note Justice Kagan’s reference to a third factor, the history of the proceedings (where the proceedings started). Did the plaintiff start with an IEP process or elsewhere? If the plaintiff started with the IEP process, a presumption is created that the suit is about a free appropriate public education.
  5. Judge Bennett also references the concurring opinion where Justice Thomas and Justice Alito agreed with the majority except for clues section because they believed those clues will have the opposite effect of providing guidance and instead are likely to confuse and lead courts astray. Justice Thomas and Justice Alito believed the hypothetical questions only made sense if one assumes no overlap between the relief available under IDEA and other federal laws. Justice Alito and Justice Thomas were also particularly bothered by the presumption of a free appropriate public education where a person starts with the IDEA process and then switches. Justice Thomas and Justice Alito were also concerned that these clues would turn into bright line tests and that courts would refuse to undertake a careful examination of the substance of the complaint and use the clues instead.

 

  1. Application of Fry to case

 

  1. While the complaint does identify parties in terms of needing or supplying special education services and having a duty to ensure equal access to a public education, those references are not about the denial of a free appropriate public education. Instead, they are allegations giving notice to the defendant of the conditions putting K.G. at risk.
  2. The IEP and the BIP are not the gravamen of the allegations of wrongfulness of the conduct in any of the six claims for relief in the complaint, and Judge Bennett goes through each of them: 1) allegations of force being contrary to his IEP and BIP are an indication of the unreasonableness of the use of force; 2) allegations of wrongfulness of one of the defendants is not that the IEP or the behavioral intervention plan was violated, but instead that the defendant acted with deliberate indifference because of inadequate training and supervision of faculty and staff in the use of force and restraints when seizing a student in special education; 3) the incident and prior incidents created a hostile educational environment in violation of title II of the ADA; 4) the allegations of negligence are all allegations unrelated and beyond the scope of a free appropriate public education; and 5) the common law claims of battery and intentional infliction of emotional distress are based upon allegations of threats or violence and physical injury and their outrageousness regardless of any requirement in the child’s IEP or BIP.
  3. Judge Bennett then turned to Justice Kagan’s clues and said that the first clue came out in favor of the plaintiff in that a person could have brought the same claim for excessive and unreasonable use of force and discrimination if the conduct had occurred at a different public facility rather than the school. The second clue also comes out in favor of the plaintiff as an employee or visitor could have brought the same grievances.
  4. The third factor, where the proceeding started, isn’t so clear as to which side it comes out on. Judge Bennett notes that the plaintiff started with the the IEP process but then abandoned it. He also notes all of the opinions in Fry mention that it is not unusual for parents to start an IEP process only to abandon it later for a variety of reasons. Accordingly, Judge Bennett notes Fry said it was important to consider whether the abandonment of the administrative proceeding was strategic or because of the realization the grievance had something to do with things other than a free appropriate public education. In Judge Bennett’s view, the claims of this case were independent of a free appropriate public education and therefore involved remedies not available under IDEA.
  5. Having decided that exhaustion was not required, Judge Bennett then proceeded to address whether the defendants were entitled to summary judgment on the various claims. In particular, he winds up: denying defendant’s motion for summary judgment on the fourth amendment claim; granting defendant’s motion for summary judgment on the 14th amendment claim based upon the facts and based upon qualified immunity; denying defendant’s motion for summary judgment on the ADA and §504 claims; denying summary judgment on the negligence claims; denying summary judgment on the battery claim; and granting summary judgment on the intentional infliction of emotional distress claim.

III

Takeaways:

  1. Judge Bennett specifically notes this is a very close case and explicitly says that reasonable jurors could go either way.
  2. Judge Bennett went on to say that he recognized that the circumstances of the case were very difficult and that teachers faced increasing challenges in terms of meeting their obligation to foster learning while keeping all students safe. He goes on to say that he does not envy the job of teachers who operate under such difficult circumstances. Nor does he envy the jurors who will try to figure out what the facts show in this case. It struck me that this kind of statement was a bit unusual coming from a judge. At least, it isn’t something I see a lot of when I read opinions.
  3. I agree with Judge Bennett that Justice Kagan’s clues while well-meaning are problematic because of the tendency of this kind of thing coming from the United States Supreme Court to lead to bright line tests and, as noted by Judge Bennett, because it may well offer an easy way out for the court rather than have the court focus on the substance of the complaint in detail.
  4. I also share Judge Bennett’s concerns about the presumption associated with where does the claim start (IEP process or the courts). The points he makes are valid. Also, IDEA is a terribly complex law and a parent often does not realize that overlapping laws with different standards and different remedies exist. If one looks to the substance of the complaint in detail, I am not sure why the presumption is even necessary. Finally, the other problem with the presumption is figuring out who has the burden of proof of overcoming that presumption. That is, is it up to the defendant, along the lines of an affirmative defense, to show that the presumption of starting with IDEA prevails or is it up to the plaintiff to have to rebut that presumption? The whole presumption thing and the clues create a big mess. Again, I know Justice Kagan was just trying to be helpful.
  5. On the plaintiff’s side, where a child has an IEP, Fry puts a huge premium on really understanding how other disability discrimination laws are different and accomplish different things than IDEA. In that situation, the plaintiff’s attorney must use that knowledge to craft the complaint so as to enable the client to evade any exhaustion requirement of IDEA. Of course, Fry is a non-issue if the child has a §504 plan and not an IEP.
  6. I think it is more helpful to think about exhaustion post Fry not in terms of relief but in terms of the substance of the particular law involved and what that law tries to accomplish.

Endrew Decided

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As you know, it is rare that I blog more than once a week. I do make exceptions for extraordinary situations. This is one of those situations. Yesterday, the United States Supreme Court decided Endrew The decision contains stirring language, and is a huge victory for students with disabilities with IEP’s. It will also fundamentally change the way the vast majority of school districts go about dealing with students with IEP’s. Finally, it is also going to change the lives of special education attorneys on both sides of the aisle. Let’s see why by looking at the court’s reasoning. Of course, I have some takeaways for you as well. The reader is free to read either of the categories or both.

I

Court’s Reasoning:

  1. For those interested in the oral argument that led up to this decision, check out this blog entry.
  2. The decision, written by Chief Justice Roberts, was unanimous.
  3. To say that Rowley imposed no explicit substantive standard is incorrect for several reasons: 1) the Court said that a substantive standard was implicit in IDEA; 2) the Court in Rowley had no need to say anything beyond what it did, since that case involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits; 3) the Court was not concerned in that case with precisely articulating a governing standard for closer cases; 4) the Court’s statement in Rowley that IDEA did not guarantee any particular level of education simply reflected the unobjectionable proposition that IDEA does not promise any particular educational outcome; 5) the Court stated in that case that determining whether children with disabilities were receiving sufficient educational benefits presented a difficult problem. That being the case, it would have been easy for the Court to say when educational benefits were sufficient if it had just said that any educational benefit was enough. It also would have been very strange for the Court to refuse to set out a test for the adequacy of educational benefits if the Court had already done that.
  4. IDEA is a substantive obligation.
  5. To meet the substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
  6. “Reasonably calculated,” reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials and a very fact intensive one at that. Further, that process involves not only the expertise of school officials, but also the input of the child’s parents or guardians.
  7. The key is whether the IEP is reasonable and not whether the court regards it as ideal.
  8. Since the essential function of an IEP is to set out a plan for pursuing academic and functional advancement, the IEP must aim to enable the child to make progress in a way appropriate to the child in light of his or her circumstances.
  9. IDEA requires that children with disabilities receive education in the regular classroom whenever possible. When that is the case, the system itself monitors the educational progress of the child. That is, regular examinations are administered, grades are awarded, and yearly advancement to the higher grade levels is permitted for those children attaining an adequate knowledge of the course material. Progress through that system is what the United States generally means by an education, and access to an education is what IDEA promises.
  10. For a child fully integrated in the regular classroom, an IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.
  11. The IEP provisions reflect Rowley’s expectation that for most children a free appropriate public education involves integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade.
  12. Any instruction and services must be provided with an eye towards progress in the general education curriculum.
  13. For students not fully integrated in the regular classroom, his or her educational program must be appropriately ambitious in light of his circumstances just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child must have the chance to meet challenging objectives. True, this is a general standard, but nevertheless, it is definitely more demanding than “merely more than de minimus,” which is what the 10th Circuit applied.
  14. A student offered an educational program providing merely more than de minimus progress from year to year can hardly be said to have been offered an education at all. For children with disabilities receiving instruction so low, that is tantamount to sitting idly waiting for the time when they were old enough to drop out. IDEA demands more by requiring an educational program to reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.
  15. Rowley specifically rejected the view of the Endrew plaintiff that IDEA required an IEP giving a student with a disability the opportunity to achieve academic success, attain self-sufficiency, and contribute to society substantially equal to the opportunities afforded children without disabilities. While that formulation was virtually identical to a concurring opinion by Justice Blackmun in Rowley, the majority rejected that standard in clear terms. Since Congress has not materially changed the definition of a free appropriate public education since it was enacted, the Court declined to interpret the concept of a free appropriate public education in a manner so much at odds with the majority opinion in Rowley.
  16. Appropriate progress will vary from case to case and that is appropriate since the adequacy of an IEP turns on the unique circumstances of the child for whom it was created. That said, such a standard should not be mistaken for an invitation to other courts to substitute their own notions of sound educational policy for those of the school authorities they would review.
  17. It is proper to give deference to the exercise of judgment by school authorities when reviewing an IEP because the nature of the IEP process, from the initial consultation to state administrative proceeding, ensures that parents and school representatives fully air their respective opinions on the degree of progress a child’s IEP should pursue.
  18. By the time any dispute reaches court, school authorities have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. Accordingly, a reviewing court may fairly expect those authorities to offer a cogent and responsive explanation for their decisions showing that the IEP is reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances.

II

Takeaways:

  1. This case will fundamentally change the way many school districts, hearing officers, and special education attorneys on both sides of the aisle go about their business.
  2. One way that it will change things is that currently the process is very adversarial in most places. Considering the primacy the court places on the IEP process and the importance of both the parent’s input and the school’s input when it comes to deference, this will force the schools to act in a much more collaborative way if they want to ensure that their IEP determination is upheld.
  3. Many schools in the past would do the advance and drop out routine, and that is not going to fly anymore.
  4. IDEA is more than just a set of procedures; it also contains substantive obligations as well.
  5. For a child fully integrated in the regular classroom, the school and the parents are going to have to work together to develop an IEP reasonably calculated to enable that child to achieve passing marks and advance from grade to grade. Instruction and services have to be provided with an eye towards progress in the general education curriculum.
  6. Every child must have the chance to meet challenging objectives. One problem that I have consistently seen is that the goals in many situations were set too low. Doing that now is inexcusable and violates this decision because every student must have the chance to meet challenging objectives, and the IEP must be appropriately ambitious for that to happen.
  7. For those students not fully integrated into the classroom, IDEA requires an educational program reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances.
  8. While a thorough collaborative process will result in a court giving deference to the school with respect to the determination of whether the IEP meets the requirements of a free appropriate public education, it does seem from this decision that the burden of proof for the sufficiency of an IEP is on the school district. That is, the court may fairly expect a cogent and responsive explanation from the school district showing that the IEP is reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances.
  9. It is clear the Court believes it has set forth a clear and workable but yet flexible standard for lower courts to apply and that outside of that flexibility the Court is not looking for freelancers (i.e. courts coming up with their own standards or variations on the standard set forth by the Court).
  10. 16-0 in favor of persons with disabilities with respect to the two IDEA cases the Court had before it this term.
  11. IDEA has teeth.
  12. Advancing the student so they graduate without any skills will not fly.
  13. Setting goals that are not challenging and not appropriately ambitious for the student will not fly.
  14. Are deaf schools history? I am a member of the Deaf and hard of hearing Bar Association, and when this case came up, the impact of this decision on deaf schools naturally arose. Deaf is a different kettle of fish than other disabilities. A Deaf, culturally deaf, person is a person that is medically deaf (I qualify); ASL (never learned it; long story); and attended a state school for the Deaf (I do not qualify, as I was completely mainstreamed). A deaf person is just someone who is medically deaf (severe to profound hearing loss). As I have mentioned previously, I consider myself deaf proud, with a small d. With the incredible emphasis on mainstreaming in this decision, does this mean state schools for the deaf are in trouble? A great question, and one without an easy answer. For Deaf advocates, it means having to thoroughly show that a state school for the Deaf is going to be the most appropriate placement. For the school, it is going to mean doing everything it can to show that it is trying everything short of that. Complicating things is that if a child is deaf, the chances are very high that his or her parents are hearing. The opposite is also true where if the parents are deaf, the child is likely to be hearing. I do look for lots of litigation over whether placement in a state school for the Deaf is appropriate, since under this decision, mainstreaming is the first option. It also means that getting into a deaf school by virtue of an IEP where that is a prerequisite for admission (the case with the Atlanta Area School for the Deaf for example), may become more difficult. That said, there is another side to it. That is, this decision would also support the proposition that closing deaf schools will be much more difficult if the deaf school can show that the kids are thriving in a challenging curriculum.
  15. This decision creates even more incentive for a school system to make the IEP as comprehensive as possible. See also ¶ 16.
  16. Don’t forget about this blog entry too.

Fry Decided

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Last week the United States Supreme Court came down with the decision in Fry v. Napoleon Community Schools, the oral argument of which I discussed here. A whole bunch of people have blogged on the case, but I thought I would share my thoughts here. The blog entry is divided into three categories:  court’s reasoning; concurrence reaoning; and takeaways. The reader will probably want to read all of it. It was a unanimous decision with Justice Kagan writing the decision for the court and Justice Alito and Justice Thomas writing a concurring opinion.

I

Court’s Reasoning

  1. Exhaustion is not necessary when the gravamen (legalese for substance), of the plaintiff’s suit is something other than the denial, of the IDEA’s core guarantee of a, “free appropriate public education.”
  2. An eligible child acquires a substantive right to a free appropriate public education once a state accepts IDEA’s financial assistance.
  3. IDEA is not the only federal statute protecting the rights of students with disabilities. Of particular relevance, are title II of the ADA and §504 the Rehabilitation Act.
  4. Under title II of the ADA, public entities are required to make reasonable modifications to its policies, practices, or procedures when necessary to avoid such discrimination. Also, §504 of the Rehabilitation Act has also been interpreted by the courts as requiring reasonable modification to existing practices in order to accommodate persons with disabilities.
  5. To fall within the standard where the IDEA requires exhaustion, a suit must first seek relief for the denial of a free appropriate public education because that is the only relief IDEA makes available.
  6. If an accommodation is needed to fulfill the IDEA free appropriate public education requirement, under IDEA, the hearing officer must order relief. However, if that accommodation is not needed to fulfill the free appropriate public education requirement, the hearing officer under IDEA has no authority to order that relief even though other federal laws, such as title II of the ADA or the Rehabilitation Act might require the accommodation on one of those alternative grounds. The sole role of the IDEA hearing officer is to enforce the child’s right to a free appropriate public education.
  7. Where a suit is brought under a different statute and the remedy sought is not for the denial of a free appropriate public education, exhaustion of the IDEA processes is not required.
  8. A school’s conduct toward a child with a disability might injure that child in ways unrelated to her free appropriate public education, which would beaddressed by statutes other than the IDEA. Such a complaint seeking redress for harms independent of a free appropriate public education denial, does not subject itself to the IDEA exhaustion requirement because the only relief the IDEA makes available is relief for the denial of a free appropriate public education.
  9. The key is the substance of the complaint and not any, “magic words.
  10. IDEA protects only children and adolescents with respect to their schooling. On the other hand, title II of the ADA and §504 the Rehabilitation Act cover people with disabilities of all ages both inside and outside schools.
  11. IDEA guarantees individually tailored educational services, while title II and section 504 promise nondiscriminatory access to public institutions. It is possible that the same conduct could violate all three statutes. Nevertheless, the statutory differences are sufficient so that a complaint brought under title II and §504 might seek relief for discrimination independent of the IDEA free appropriate public education obligation.
  12. In figuring out whether the substance of the complaint involves something other than a free appropriate public education, one can look to several clues: A) could the plaintiff have brought essentially the same claim had the alleged conduct had occurred at a public facility that was not a school, such as a public theater or library?; and B) could an adult at the school, such as an employee or a visitor, have brought essentially the same claim? When the answer to both of these questions is yes, the complaint that does not expressly allege the denial of a free appropriate public education is also unlikely to be truly about that subject. If the answer to these two questions is no, then the complaint probably does concern a free appropriate public education.
  13. In fleshing out ¶ 12, Justice Kagan gives several examples, including: a child in a wheelchair suing the school for discrimination under title II because the building lacks access ramps; a teacher striking a student with a disability; a child with a learning disability suing under title II for failing to provide remedial tutoring in mathematics; and later on in the opinion, the situation of a child suing for the right to use his or her service dog.
  14. Besides the clues in ¶ 12 above, another signal that the substance of the suit is a denial of a free appropriate public education might emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA formal procedure to handle the dispute-thereby, starting to exhaust IDEA’s remedies before switching midstream. The plaintiff’s initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a free appropriate public education with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy. If there is a switch in processes, it is then up to the court to decide whether that switch reveals that the substance of the complaint is indeed the denial of a free appropriate public education and therefore, necessitates further exhaustion.
  15. The Court of Appeals used the wrong standard by looking to see whether the injuries were free appropriate public education focused in nature. The standard that should have been used is what was the substance of plaintiff’s complaint. Since information is lacking because the wrong standard was utilized, the court remanded the issue back to the Court of Appeals.
  16. The plaintiff’s complaint focused on equal access and nothing in the complaint suggest any implicit focus on the adequacy of the plaintiff’s free appropriate public education.

II

Concurrence Reasoning (Alito and Thomas):

  1. The clues offered by the court only makes sense if one assumes there was no overlap between the relief available under the IDEA and the relief provided by other laws, such as the Constitution, the ADA, and the Rehabilitation Act.
  2. The court admits in its opinion that such overlap exists.
  3. Since the clues only work in the absence of overlap, Justice Alito joined by Justice Thomas would not use them.
  4. The clue of how the proceedings start is ill advised. After all, it is easy to imagine circumstances where the parent starts down the IDEA road and then changes course and files an action under the ADA or the Rehabilitation Act seeking relief that the IDEA cannot provide. It is possible that the parents might be advised by their attorney that the relief they were seeking under the IDEA is not available under that law but is available under another. Or, the parents might change their minds about the relief that they want, give up on the relief that the IDEA can provide, and turn to another statute.
  5. Although the court provides these clues for the purpose of assisting the lower courts, Justice Alito joined by Justice Thomas was afraid that the clues may have the opposite effect by confusing and leading courts astray.

III

Takeaways:

  1. My initial reaction is that I agree with Justice Alito and Justice Thomas regarding the clues section of the opinion. The laws certainly do overlap to quite a degree, especially when one considers that is that the rare IEP that does not have accommodations in it. Also, I also find it easy to imagine circumstances where parents, who very well may not be assisted by a lawyer or by an advocate at the initial stages, inadvertently start down the IDEA process before realizing that the IDEA process was not necessary in light of the facts being alleged. That said, to be fair to Justice Kagan, she did say that the court had an independent obligation to evaluate whether the switch revealed a complaint that at its core was about a free appropriate public education rather than something else. In essence, what Justice Kagan has done with the switch clue is to create a rebuttable presumption that the switch involved a complaint whose substance is about a free appropriate public education, which can be rebutted by a plaintiff showing to the contrary.
  2. The decision is a big win for students with disabilities, but it is going to make the life of lawyers representing students with disabilities much more complicated. Now, the incentives are going to be for the school district to put everything and anything in the IEP so that it can rely on the IDEA processes needing to be exhausted first, especially with Justice Kagan’s rebuttable presumption thrown in. On the other hand, if you are representing a student with a disability, you very well might want to consider having two plans for the student. One plan focusing on the free appropriate public education through the use of the IEP. Then, having a separate §504 plan focusing on all of the nonrelated reasonable modifications the student needs. That way, if something goes amiss with the §504 plan, you do not have to worry about the IDEA process. From a plaintiff’s side this approach makes a great deal of sense. However, there may be some resistance as school districts are not used to having both IEP’s and §504 plans simultaneously. Creating two separate plans simultaneously may be quite a complex task since, as mentioned above, it is the rare IEP that is focused on services only rather than a combination of services and accommodations. This also raises the question of whether the student with a disability can get by entirely with the § 504 plan rather than an IEP. That indeed may be possible in some cases but not in others.
  3. From reading the tone of this decision and the oral argument in Endrew, which was discussed here, it is pretty easy to predict that the court is going to say in Endrew that schools will have to do something more than the minimum to meet their obligation under IDEA.
  4. The rebuttable presumption also means that if an attorney does decide to go the route of not exhausting the IDEA process, it would be a good idea for the pleadings to clearly set forth what concerns would fall under the IDEA process and why the concerns of the claim being alleged are independent of that process. That task is made even easier if two simultaneous plans (IEP and §504), exist. This task is made more complicated by the fact that IDEA and title II of the ADA/§504 have different philosophies even though the term “free appropriate public education,” is used by both IDEA and §504. IDEA is all about setting goals and seeing if progress is met towards those goals. Whereas, §504 and the ADA are about figuring out the reasonable modifications that enable the student with a disability to get to the same starting line as others.
  5. I agree with Justice Alito and Justice Thomas that these clues are going to be locked in and that subsequent litigation is going to involve the application of the clues. I also agree that the opinion for the court may have underestimated the extent of the overlap between the laws and the complexity of disentangling that overlap.
  6. It isn’t unusual for school systems to issue the same packet of rights to parents for students with an IEP and for students with a §504 plan. While that may be a common practice, which was never supported by the law, it certainly isn’t supported by the law now. This case makes it quite clear that the rights under §504 and the ADA are entirely different than the rights under IDEA. It will be interesting to see how school districts inform parents, if at all, of the separate rights available to them when it comes to IDEA and §504/ADA.
  7. When a special education lawyer receives the case and it is possible that the accommodation/modification involved are §504/ADA focused rather than IDEA focused, the lawyer as a result of justice Kagan’s rebuttable presumption, is going to have to make an election at the top as to whether to go through the IDEA process or go to the courts under §504/ADA.