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By:  Rochelle Eisenberg, Esquire

On February 22, 2017, the Supreme Court issued a decision in Fry v. Napoleon Community Schools et al. A school district had prohibited a student from bringing her service dog, Wonder, to school with her. So the family filed suit for money damages under Title II of the ADA and Section 504 of the Rehabilitation Act of 1973, as amended, claiming the student suffered “emotional distress and pain, embarrassment [and] mental anguish as a result. Decisions were issued by the U.S. District Court and the Sixth Circuit Court of Appeals in favor of the school district on the basis that the claimed injuries were “educational” in nature, making the case subject to IDEA’s exhaustion requirement. The exhaustion requirement mandates that the plaintiff must exhaust administrative remedies under the IDEA, which in Maryland would mean that the plaintiff must file for a due process hearing before the Office of Administrative Hearings. The Supreme Court vacated the judgment of the Sixt h Circuit and in so doing, announced a new standard. That standard is that exhaustion is only required if the plaintiff is seeking relief for the denial of a FAPE (free appropriate public education) because that is the only “relief” IDEA makes available. The Supreme Court said, in what will likely end up being the basis for future litigation, that when “determining whether a suit seeks relief for a denial of FAPE, the court should look to the substance, or gravamen, of the plaintiff’s complaint.” Then the Supreme Court gave two “clues” to help decide if the gravamen of a complaint concerns the denial of FAPE. “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?” A “yes” answer means the complaint is unlikely to address a denial of FAPE.

On a daily basis, this decision will have no impact on how you do business. But any time there is a change that makes it easier to file suit, inevitably that results in more litigation. Eliminating the need to exhaust administrative remedies and giving plaintiffs the right to go straight to court will increase your costs. It is now more important than ever to make sure your schools are compliant with Section 504 and the ADA.

We await the Supreme Court’s upcoming decision on the definition of FAPE. Hold on tight. It may be quite a rollercoaster ride.

Rochelle S. Eisenberg is a Member of Pessin Katz Law, P.A. (PK Law) and practices in the firms Education, Labor and Employment Group.  She has over 35 years of experience representing public and private employers on the management side, colleges and universities, Superintendents and/or local boards of education in all areas of special education and the education of students with disabilities (attendance at IEP and 504 meetings, mediations, hearings, federal and state court litigation); regular involvement with issues dealing with student rights and discipline, student services issues, abuse investigations, all facets of employment law, collective bargaining, impasse arbitration, First Amendment cases, wage and hour matters, contract interpretation, the handling of arbitrations and mediations, and drafting legislation.  Ms. Eisenberg has a weekly blog, “Tips”, that offers her opinions and positions in accordance with federal and Maryland law and her years of experience in the special education legal field.