Circuit applies "futility" rule in student disability cases

The general rule is that if you want to sue a school district or the State of New York over the deprivation of your disabled child's rights in the educational setting, you have to initially file an administrative complaint and give local and then state authorities an opportunity to address the problem. Without the exhaustion of these administrative remedies, the case is dismissed for lack of subject matter jurisdiction. There is an exception: we call it "futility."

The case is J.M. v. New York City Dept. of Education, issued on December 9. Plaintiffs argue that the City violated the Individuals with Disabilities in Education Act in maintaining a policy of discontinuing the services of disabled students before their 22nd birthday. The Second Circuit held in 2021 that the IDEA requires school districts to provide educational services to such students until they turn 22. That case originated in Connecticut. The claim here is that New York City is not following that mandate. Parallel state court litigation on this issue is raging in the Appellate Division and the New York Court of Appeals, but the Second Circuit decides this issue on its own without binding guidance from the state courts.

The Second Circuit holds that the 22-year-old policy applies in New York. What it all means for purposes of administrative exhaustion is that, since the plaintiffs are challenging a statewide policy, any administrative claim that would ultimately wind up at the State Department of Education would be futile. Why? Because futility doctrine recognizes that the state agency that is maintaining an unlawful policy is not likely to change its mind through an administrative proceeding. While the normal course of action is to bring the administrative action through the local school district and then the State Education Department when the district denies a disabled student their proper educational services, a structural challenge to state policy, like this one, is a different ballgame altogether.

The "policy or practice" futility exception to the "exhaustion of administrative remedies" rule is alive and well and applies to this case. If you handle IDEA cases and wish to proceed in court without exhausting the administrative remedies, this case is a must-read, as the Court of Appeals (Cabranes, Chin and Robinson) offers a thorough discussion on the history of the IDEA and the futility doctrine. The end result is this case returns to the district court docket to determine whether the State of New York violated the rights of the student-plaintiffs in this case.