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By: William Fields, Esquire

More than a year after the first reports of COVID in the U.S., reported decisions are starting to appear, and the challenges of applying established legal concepts to unexpected events such as long-term school closures and the gradual reopening of schools are quite evident.  For example, when confronted with similar contentions regarding facemask policies, courts have not made consistent findings.  Courts are divided on whether a claim for accommodation in schools in response to mask-optional policies is an Individuals with Disabilities Education Act (IDEA) claim and subject to administrative exhaustion, or a claim under the Americans with Disabilities Act (ADA) and therefore not subject to exhaustion as set out in Fry v. Napoleon Cmty. Schs., –– U.S. ––, 137 S. Ct. 743, 748 (2017).

Administrative Exhaustion

  1. Necessity Of Exhaustion Relies On Determination Whether The Request Is For Accommodation Or For Special Education.

In S.B. by & through M.B. v. Lee, No. 321CV00317JRGDCP, 2021 WL 4755619 (E.D. Tenn. Oct. 12, 2021) the plaintiffs sought to block both the Tennessee governor’s executive order, which allowed parents to opt out of mask mandates, and the action of the local school board, which did not renew its mask mandate for the 2021-2022 school year.  The plaintiffs, who had severe heart and lung issues, brought claims under the Americans with Disabilities Act and the Rehabilitation Act, alleging that the acts of the governor and the board put them at increased risk of serious injury or death due to COVID.

The governor claimed what the plaintiffs were actually alleging was a denial of free appropriate education (FAPE) under the IDEA, and as the plaintiffs had failed to exhaust their IDEA administrative remedies, their claim should be denied.  The court applied the Fry test, which asks (1) whether the claim could be brought at a public facility that was not a school and (2) whether an adult at the school could request relief on a similar claim.  The court found that both questions were answered in the affirmative, and therefore FAPE was not at issue.  S.B., –– F.Supp.3d ––, 2021 WL at 6.  The court enjoined the governor’s executive order and the board’s policy.

But in Hayes v. DeSantis, No. 1:21-CV-22863-KMM, 2021 WL 4236698 (S.D. Fla. Sept. 15, 2021) while the plaintiffs like those in S.B. sought to block the Florida governor’s executive order and local school systems’ mask-optional policies under the ADA and the Rehabilitation Act, the court found that this was properly considered an IDEA claim.

The Hayes court invoked the Fry test, but first reviewed the plaintiffs’ complaint, motion, and affidavits and found them to be “replete with explicit references to alleged denials of FAPE.”  The court therefore found the Fry questions answered in the negative, meaning the plaintiffs had not brought ADA/RA claims as set out in their complaint, but unknowingly had brought IDEA claims.  Perforce, as the plaintiffs had failed to exhaust their IDEA administrative remedies, their claims were dismissed.  The court further rejected the plaintiffs’ argument that seeking administrative remedies would be futile.  Compare with Hernandez v. Grisham, infra.

  1. Exhaustion May Not Be Required If Administrative Remedies Are “Not Appropriate.”

In IDEA+COVID cases, courts have also considered when administrative exhaustion is not required, finding that in exceptional circumstances an administrative remedy may not be capable of providing the relief sought.

In Hernandez v. Grisham, 494 F. Supp.3d 1044 (D.N.M. 2020), the State Education Agency (SEA) issued school reopening guidance after COVID-related closures.  The SEA’s guidance allowed Local Education Agencies (LEAs) to provide education services remotely, in person, or a combination of remote and in person instruction.  The LEA offered the plaintiffs an IEP that was to be implemented via remote instruction.

The plaintiffs filed a complaint against the use of remote instruction, asserting a variety of legal theories, including a denial of FAPE under the IDEA.  The plaintiffs alleged that the student could not receive FAPE when special education services were offered via remote instruction, as previously the student had regressed when taught via remote instruction.

The court considered whether “exhaustion would be futile or inadequate,” and found that the LEA’s reliance on the guidance from SEA would likely have made seeking an administrative remedy futile, as the SEA would not be a party to the administrative proceeding.

Because the student had not made progress via remote instruction, and other modes of instruction were available to the LEA, the court found it likely the plaintiffs could show that the student was not receiving a FAPE.  The court issued a temporary restraining order requiring the state education agency to instruct the student’s LEAto amend the student’s IEP so that it was reasonably calculated to enable her to make progress regardless of the LEA’s preference for remote instruction.

Contrast this with Borishkevich v. Springfield Pub. Sch. Bd. of Educ., No. 20-03240-CV-S-BP, 2021 WL 2213237, at *1 (W.D. Mo. May 27, 2021), which is facially similar to Hernandez. Borishkevich also involved the SEA’s guidance on re-opening schools as well as plaintiffs who claimed that in-person instruction was required for special education. But where the plaintiffs in Hernandez argued that exhaustion of administrative remedies was not appropriate, the Borishkevich plaintiffs instead argued that it was unclear whether they could file a due process complaint during the COVID closure.  This proved fatal to their case, as the court found that this uncertainty did not constitute an exception to the exhaustion requirement, and therefore dismissed the IDEA/RA claims.

Practice Tips

For practitioners representing school systems, any federal filing on accommodation must be reviewed to see if a viable claim can be made that the complaint is actually a special education matter, which generally must be heard administratively before going to federal court.  Hayes makes clear that it is not enough for a plaintiff to claim that a request for accommodation falls under the ADA/RA; where the claim uses special education language, it’s at least susceptible to a motion to dismiss for failure to exhaust administrative remedies.  To avoid “futility claims,” be prepared to address how an administrative remedy is available. Conversely, make plaintiffs do more than allege futility; they must be able to prove up that no administrative remedy exists.

William Fields is Counsel in PK Law’s Education, Labor, and Employment Group. In his practice, Bill focuses on the representation of county school boards across Maryland, as well as representing private schools, higher education institutions, and private sector employers with employment and labor issues. Prior to working as an Assistant Attorney General, Bill was an Assistant Public Defender in the Maryland Office of the Public Defender’s Parental Defense Division, and Staff Attorney with Disability Rights Maryland. He can be reached at 410-740-3177 or