Supreme Court puts an end to futility-creep

The Individuals with Disabilities in Education Act is a comprehensive federal law that regulates the rights of disabled children in public schools. In a nutshell, it allows learning-disabled and other disabled children to have a Free Appropriate Public Education (FAPE), normally effected through an Individualized Education Plan (IEP) that the school district has to create with input from the parents. If the parents don't like the IEP, they can ask for an impartial hearing and then take their grievance to state educational authorities. The question raised by this Supreme Court case is when must parents exhaust that remedy in cases involving disabled children before they can sue in federal court.

The case is Fry v. Napoleon Public Schools, decided by the Supreme Court on February 22. This case acquaints us with the boring but important topic of "futility." This legal principle says that you have to exhaust, or complete, certain state procedural remedies before you can file the lawsuit in federal court. In the IDEA context, that means you have to ask the New York State Commissioner of Education to rule on the propriety of the IEP before you can bring a federal lawsuit that challenges the legality of the IEP. That lengthy process would take months and months, and then the Commissioner's findings are entitled to some deference.

Yet, over the years, this led to exhaustion creep, sort of like surburban sprawl, or schedule creep, where part-timers slowly gain more job responsibilities and have to put in more and more hours. Futility creep led to cases in New York that essentially said that any lawsuit involving a disabled schoolchild has to first run through the state educational bureaucracy, even if the case did not involve an IEP but instead involved, i.e., the use of a service dog or peer-to-peer bullying. This reason this matters is that other federal statutes also protect disabled schoolchildren, including the Americans with Disabilities Act and the Rehabilitation Act, which deal with access to public institutions.

The Supreme Court takes up this issue, unanimously finding that the exhaustion creep has gone too far. Justice Kagan -- who is going out of her way to write as casually as possible, it seems -- says that IDEA exhaustion only applies when the dispute concerns a FAPE. Since lawyers sometimes want to file in federal court without wasting their time in the state educational bureaucracy, courts are on the lookout for artful pleading intended to show the case is not really a FAPE case but some other federal dispute. Justice Kagan says that one way to determine whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions:

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? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.

Take two contrasting examples. Suppose first that a wheelchair-bound child sues his school for discrimination under Title II (again, without mentioning the denial of a FAPE) because the building lacks access ramps. In some sense, that architectural feature has educational consequences, and a different lawsuit might have alleged that it violates the IDEA: After all, if the child cannot get insidethe school, he cannot receive instruction there; and if he must be carried inside, he may not achieve the sense of independence conducive to academic (or later to real-world) success. But is the denial of a FAPE really thegravamen of the plaintiff ’s Title II complaint? Consider that the child could file the same basic complaint if a municipal library or theater had no ramps. And similarly,an employee or visitor could bring a mostly identical complaint against the school. That the claim can stay the same in those alternative scenarios suggests that its essence is equality of access to public facilities, not adequacy of special education.

This case changes the landscape for litigation against school districts involving disabled students. Over the next few years, lawyers will ask the Second Circuit (and other federal courts) to find that this case overturns prior Second Circuit rulings that shut out these cases before the plaintiffs could exhaust state administrative remedies.