Missing the IDEA: Expanding the Availability of Judicial Relief for Aggrieved Special Education Students
By Nicholas Alan Raak. Senior Managing Editor, Michigan State Law Review; J.D. Candidate 2024, Michigan State University College of Law; B.A. 2022, Grand Valley State University. I would like to thank my friends, family, and colleagues for their enduring support throughout my (still young) career. I would also like to give special thanks to my grandpa, Al Vis, who passed away during the authorship of this Article, for his everlasting love, care, and memories, and for letting me borrow his name.
Regardless of their background, upbringing, abilities, or any other uniqueness, every child deserves a chance at an adequate education. But an adequate education is different for every student. Special education students, some of the most vulnerable students in the public education system, are no exception. Unfortunately, the current reality is that special education students do not get the education they need and deserve. Parents often do not agree with their child’s school over their child’s individual special education plan. Disagreements force parents to begin formal grievance processes to advocate for their children: the Individuals with Disabilities Act (IDEA) administrative procedures. These procedures, frequently referred to as a “labyrinth,” often leave parents feeling helpless.[1]
In its 2022–2023 Term, the Supreme Court revived its interest in special education law under the IDEA in Luna Perez v. Sturgis Public Schools.[2] In Luna Perez, the Supreme Court reversed the Sixth Circuit, holding that aggrieved parents seeking relief that is not available under the IDEA are not required to exhaust administrative procedures under the IDEA.[3] While the Court correctly determined that relief that is not available under the IDEA must not be exhausted, the Court’s definition of “available” was too narrow. Rather, the Court should have relied on its precedent analyzing a nearly identical mandatory exhaustion provision to further define and extend when relief is not available under the IDEA.
Part I of this Article discusses the IDEA and its guarantees. Part II of this Article discusses the IDEA’s mandatory exhaustion provision and recent caselaw interpreting that provision. Finally, Part III discusses the deficiencies in this caselaw and advocates for an extension of the Court’s precedent to further protect and guarantee special education students’ right to a public education.
I. The Individuals with Disabilities Education Act
Children with disabilities generally receive protections from discrimination through three federal statutory schemes: Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA), and the IDEA.[4] The IDEA specifically provides that each state (through their individual school districts) must provide a free appropriate public education (FAPE) to all children with disabilities;[5] must establish a goal of providing full educational opportunity to all children with disabilities;[6] must identify, locate, and evaluate all children with disabilities to ensure they receive necessary special education services;[7] must craft an individualized education plan (IEP) or an individualized family service plan (IFSP) to provide necessary services for special education students;[8] and these requirements must be made in the least restrictive environment.[9] If states meet these eligibility requirements, the IDEA provides additional financial assistance for those states.[10]
When children with disabilities or their parents are not pleased with the education they or their child receives from the school, regardless of IDEA compliance, the IDEA provides vast procedural safeguards for disabled children and schools.[11] Most notable in these procedural safeguards is the availability of an impartial due process hearing by the state educational agency or the local education agency, and the ability to appeal the findings and decision from the impartial due process hearing to the state education agency.[12] Additionally, parents may file a civil complaint to seek a judicial remedy.[13] However, filing a civil complaint invokes the IDEA’s infamous exhaustion provision.[14]
II. The IDEA’s Exhaustion Provision: 20 U.S.C. § 1415(l)
An aggrieved parent or student may seek a judicial remedy at any time, but the timing of the complaints may invoke necessary exhaustion steps. According to the IDEA’s rules of construction, before filing a civil action for relief that is also available under the IDEA, the party seeking relief must exhaust the procedures outlined in the IDEA’s impartial due process hearing and appeal procedures.[15] This exhaustion requirement applies regardless of whether relief is sought under the IDEA, the Constitution (such as an action under 42 U.S.C. § 1983), the ADA, section 504 of the Rehabilitation Act, or any other law protecting the rights of children with disabilities.[16]
This exhaustion requirement necessarily begs the question: when is a party seeking relief that is available under the IDEA when the action is brought under other federal laws? In other words, when is the IDEA’s exhaustion provision implicated? The Supreme Court answered this question (or, at least, attempted to answer it) in Fry v. Napoleon Community Schools.[17]
In Fry, E.F. suffered from cerebral palsy, which significantly limits her motor skills and mobility, requiring special education services when she entered Ezra Eby Elementary School as a kindergartener. In particular, E.F. required the assistance of a service dog, but Ezra Elby Elementary refused her request for her goldendoodle, Wonder, to attend school with her. E.F. briefly attended school alone, but the school eventually allowed Wonder to attend—albeit in a limited capacity. Later, the school again refused to allow E.F. the benefit of Wonder’s services, and E.F.’s parents decided to homeschool her. E.F.’s parents later filed a civil action against the local school district Ezra Elby Elementary was located in—Napoleon Community Schools—under the ADA and Section 504 of the Rehabilitation Act, seeking declaratory relief and monetary damages. The district court dismissed the Frys’ complaint, concluding that they were required to exhaust the IDEA’s administrative procedures under § 1415(l). The Sixth Circuit affirmed.[18]
The Supreme Court reversed and held that a civil action must be exhausted under § 1415(l) when the action seeks relief for the denial of a FAPE—the free and appropriate education guaranteed by the IDEA. A court should look at the gravamen of the complaint to determine if it seeks relief for the denial of a FAPE.[19] The FAPE requirement is the “yardstick” of the IDEA—the measurement by which the school determines the adequacy of its education for children with disabilities, and the IDEA’s administrative procedures are meant to test whether the school has met its obligation to provide all children with a FAPE. Therefore, if a civil action seeks relief for the denial of a FAPE, § 1415(l) prohibits the party seeking relief from skirting exhaustion by filing a civil action under, for example, the ADA. Instead, that claim must be exhausted.[20]
The Court went on to determine when a civil complaint’s gravamen seeks denial of a FAPE. Indeed, a complaint might not use the terms FAPE, IEP, IFSP, or any other bizarre acronym or initialism but nonetheless seek relief for the denial of a FAPE.[21] To determine whether the gravamen of the complaint seeks denial of a FAPE, and thus implicates the IDEA exhaustion requirement, the Court offered two “clues.” First, could the plaintiff have brought essentially the same claim if the alleged conduct has occurred at a public facility that was not a school? Second, could an adult at the school have pressed essentially the same grievance? If the answer to both of those questions is “no,” the complaint “probably” does concern the denial of a FAPE.[22]
In sum, the only relief available under the IDEA is relief for the denial of a FAPE, so only denials of a FAPE must be exhausted. But what if a complaint seeks relief for the denial of a FAPE, but the specific type of relief requested is not “available” under the IDEA? Again, the Supreme Court had the answer, this time in Luna Perez v. Sturgis Public Schools.[23]
In Luna Perez, Miguel, a deaf student, attended Sturgis Public Schools from the age of nine through twenty. Miguel required the assistance of a classroom aid to provide sign language interpretation. However, for years of Miguel’s education, his so-called aids were either unqualified to interpret to American Sign Language (including one aid who purported to teach herself sign language after being assigned as Miguel’s ASL aid) or absent from class, leaving Miguel with no assistance for much of his education. Sturgis Public Schools also allegedly misrepresented Miguel’s academic progress, choosing to funnel Miguel through class rather than provide meaningful assistance. As a result, when it came time for Miguel to graduate, the school denied him a diploma. Miguel filed a complaint with the Michigan Department of Education, and Miguel and Sturgis reached a settlement agreement wherein Sturgis promised to provide Miguel with all of the forward-looking equitable relief he sought in this complaint. To remedy the backward-looking damages Miguel suffered, Miguel filed a civil action against Sturgis in federal court under the ADA seeking compensatory damages. Sturgis moved to dismiss the complaint, arguing that Miguel failed to exhaust his administrative remedies under 20 U.S.C. § 1415(l). The district court agreed and dismissed Miguel’s complaint. The Sixth Circuit affirmed.[24]
The Supreme Court, again, disagreed with the Sixth Circuit. According to the statutory language of § 1415(l), a plaintiff must only exhaust his complaint if his complaint seeks a “remedy” that is available under the IDEA, not whether the harm is a harm that could be remedied by the IDEA. Thus, because compensatory damages are not a remedy available under the IDEA, plaintiffs seeking compensatory damages are not required to first exhaust their complaints under § 1415(l).[25]
In short, if the gravamen of the complaint seeks relief for denial of a FAPE, Fry requires administrative exhaustion; if a complaint does not seek relief for denial of a FAPE, no exhaustion is required. If the complaint seeks relief for denial of a FAPE, but the IDEA does not make the relief sought “available,” Luna Perez does not require exhaustion.
III. Fry and Luna Perez’s Deficiencies
While Fry and Luna Perez appear to be a win—because they certainly were for E.F. and Miguel—they are not as big of a win as disabled children could have (and should have) received. Fry and Luna Perez were a monumental step forward, but the Court could have leaped forward in two more interrelated ways. First, the Court could have and should have confirmed § 1415(l)’s futility exception. Second, the Court could have and should have gone further to define when a remedy is and is not available under the IDEA. By taking these two leaps, the Court could have ensured that disabled students are able to exercise their statutory right to a FAPE.
In granting the writ of certiorari in Luna Perez, the Supreme Court sought to review not only the availability of compensatory damages under the IDEA but also whether, and in what circumstances, courts should excuse further exhaustion of administrative remedies when exhaustion would be futile.[26] In reviewing this question, the Court sought to resolve an eleven-to-one circuit split created by the Sixth Circuit’s opinion below.[27] However, the Court declined to address the futility question because, according to the Court, the Court had no occasion to address that question given its holding.[28] At the very least, the Court should have answered this question to resolve the vast circuit split and to confirm the reality that administrative procedures may be futile even when the relief the complaint seeks fits squarely within the IDEA.
The IDEA’s exhaustion requirement attempts to strike a balance between two competing goals. On one hand, Congress attempted to promote access to education for all students by requiring schools to educate special education students in the least restrictive environment possible. However, Congress also attempted to allow school administrators to use their experience and unique expertise to determine what that least restrictive environment must be for each individual special education student. Thus, the purpose of the exhaustion requirement is to allow the administrative process the opportunity to create a remedy that is in the child’s best interest, and still-aggrieved students and parents may seek judicial remedies as a last resort.[29]
But sometimes when the aggrieved student and parents seek relief for denial of a FAPE, the balance the administrative procedures seeks to create is immaterial because seeking administrative relief is futile. While many courts recognize a general futility exception, just like in other administrative contexts, there is no consensus of a clear definition of when exhaustion is futile. Rather, futility is a broad name for various situations where obtaining relief is unlikely.[30] Because is this breadth of situations, no clear definition of futility has been promulgated from higher courts, let alone the highest court.[31] The closest the Court came to addressing this question occurred in Honig v. Doe, where the Court conclusory stated that parents may bypass the administrative processes of the Education for All Handicap Children Act (EHA) where exhaustion would be futile or inadequate.[32] But this promulgation has two problems: the EHA has now been replaced by the IDEA, and the Court did not analyze the futility question.[33] The Court’s futility discussion is dicta at best. Although the Court in Luna Perez was correct that it did not have to answer the futility question, it should have answered it to provide much needed clarity to this ambiguous area of law.
Rather than determine whether, and in what circumstances, courts should excuse further exhaustion under the IDEA, the Court took Luna Perez entirely out of the IDEA by holding that Miguel’s requested relief (monetary damages) are not an available relief under the IDEA. Although the Court narrowed and defined what relief is available (or, more specifically, what is not available) under the IDEA, it did not discuss when relief is available when the complaint fits squarely within the IDEA.
The Court gave some hints in Fry, but mere hints are not enough. In Fry, the Court gave a brief discussion of when relief is available, stating, “‘relief is ‘available,’ as we recently explained, when it is ‘accessible or may be obtained.’”[34] The Court’s statement comes from Ross v. Blake, a prisoner suit under 42 U.S.C. § 1983 that discusses a materially similar exhaustion requirement as the IDEA.[35]
In Ross, the Supreme Court interpreted 42 U.S.C. § 1997e(a), which requires prisoners seeking relief under 42 U.S.C. § 1983 for unconstitutional prison conditions to first exhaust “available” administrative procedures. The Court stated that the term “available” provides a “textual exception to mandatory exhaustion.”[36] Indeed, a litigant must only exhaust administrative procedures when those administrative procedures are available. The Ross Court went on to describe when administrative procedures are unavailable. First, administrative procedures are unavailable when the procedure would operate as a simple dead end with officers unavailable or unwilling to provide relief (i.e., futility). Second, procedures are unavailable when they are so opaque that it is incapable of use. Third, procedures are unavailable when the prison administrators thwart prisoners’ attempts to take advantage of the procedures.[37]
Although the Fry Court discussed the Ross decision, the Court should have gone further in Fry and Luna Perez by extending the reasoning of Ross to define when administrative remedies are not “available” under the IDEA. By extending Ross’s holding to the IDEA exhaustion requirement, we begin to understand what relief is available under the IDEA and when that relief is available and unavailable.
In the context of a special education lawsuit, Ross’s unavailability contexts can easily be expanded to IDEA’s own textual exception to mandatory exhaustion.[38] As discussed above, the IDEA’s reality requires a futility exception, as many school administrative procedures are a simple dead end for certain remedies. For example, some courts excuse special education students from the strict exhaustion requirements when the administrative procedures lead to lengthy delays, rendering the administrative process a pointless endeavor.[39] Courts have also allowed students to avoid administrative exhaustion where the school will not or cannot enforce its own remedies.[40] Moreover, educational administrative procedures are equally as opaque as prison administrative procedures, and this opacity should render administrative procedures unavailable under the IDEA. As Judge Catharina Haynes of the Fifth Circuit commented:
The IDEA's complex procedural requirements and opaque, jargon-laden provisions easily could discourage even the most dedicated parents from “going it alone.” Although the IDEA provides parents a right to use attorneys or other specialized individuals in resolving special education disputes . . . it is difficult to find—let alone afford—attorneys to take these cases, especially in those areas where such help is most needed.[41]
Finally, school administrators may attempt to thwart special education students’ due process rights, much like prison officials under Ross. For example, school officials may fail, intentionally or otherwise, to inform parents of their ability to seek additional remedies.[42]
Conclusion
Fry, Luna Perez, and Ross provide a conglomerate of clarity to an unclear area of law. Fry explains that only denials of a FAPE must be administratively exhausted, and Luna Perez confirms that a denial of a FAPE is the only relief the IDEA provides. By extending Ross to the IDEA exhaustion requirement, special education students will have greater access to education and will be allowed to enforce their right to a FAPE by elimination the overbearing exhaustion requirement when exhaustion would be futile or otherwise unavailing.
Senior Managing Editor, Michigan State Law Review; J.D. Candidate 2024, Michigan State University College of Law; B.A. 2022, Grand Valley State University. I would like to thank my friends, family, and colleagues for their enduring support throughout my (still young) career. I would also like to give special thanks to my grandpa, Al Vis, who passed away during the authorship of this Article, for his everlasting love, care, and memories, and for letting me borrow his name.
[1] See Roland M. v. Concord Sch. Comm., 910 F.2d 983, 1000 (1st Cir. 1990) (“[P]lacement disputes may take years to wind their way through the administrative/judicial labyrinth.”).
[2] Luna Perez v. Sturgis Pub. Schs., 598 U.S. 142 (2023).
[3] Id. at 146–47.
[4] 29 U.S.C. § 794, et seq. (Section 504 of the Rehabilitation Act); 42 U.S.C. § 12131, et seq. (Americans with Disabilities Act); 20 U.S.C. § 1412, et seq. (IDEA); see also Claire Raj & Crystal Grant, Masks, Mayhem, and the Future of Disability Rights in Schools, 25 N.Y.U.J. Legis. & Pub. Pol’y 247, 256, 259 (2022).
[5] See 20 U.S.C. § 1412(a)(1).
[6] See § 1412(a)(2).
[7] See § 1412(a)(3).
[8] See § 1214(a)(4).
[9] See § 1412(a)(5). In other words, children with disabilities should be educated with children who do not have disabilities “[t]o the maximum extent possible.” See id. For an in-depth discussion of the “least restrictive environment” requirement, see Kelsey Reiner, Note, Least Restrictive Environment: Where Segregated, Self-Contained Special Education Classrooms Fall on the Continuum of Placements and Why Mainstreaming Should Occur with Same-Age Peers, 2018 Mich. St. L. Rev. 743, 748–64 (2018).
[10] See § 1412(a).
[11] See § 1415.
[12] See § 1415(f), (g).
[13] See § 1415(i)(2).
[14] See § 1415(l).
[15] See id.
[16] See id.
[17] Fry v. Napoleon Cmty. Schs., 580 U.S. 154, 158 (2017).
[18] See id. at 161–65.
[19] See id. at 165.
[20] See id. at 165–69.
[21] I share similar sentiments as Justice Kagan: “Welcome to—and apologies for—the acronymic world of federal legislation.” Id. at 158.
[22] See id. at 169–71.
[23] Luna Perez v. Sturgis Pub. Schs., 598 U.S. 142, 144 (2023).
[24] See id. at 144–46. The Sixth Circuit further held that Miguel’s claim was not exhausted and that his claim could not avoid exhaustion due to futility because the IDEA’s exhaustion requirement has no futility exception. See Perez, 3 4th 236, 242–44 (6th Cir. 2021), rev’d, Luna Perez v. Sturgis Pub. Schs., 598 U.S. 142 (2023).
[25] See Luna Perez, 598 U.S. at 147.
[26] See Brief for Petitioner at i, Luna Perez v. Sturgis Pub. Schs., 598 U.S. 142 (2023) (No. 21-887).
[27] Compare Perez, 3 4th at 242–44, with Doucette v. Georgetown Pub. Schs., 936 F.3d 16, 22, 31 & n.21 (1st Cir. 2019), and B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 157 & n.3 (2d Cir. 2016), and Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 280–81 (3d Cir. 2014), and M.M. ex rel. DM v. Sch. Dist. of 15 Greenville Cnty., 303 F.3d 523, 536 (4th Cir. 2002), and Heston v. Austin Indep. Sch. Dist., 816 F. App’x 977, 983 (5th Cir. 2020) (per curiam), and Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 494 (7th Cir. 2012), and J.M. v. Francis Howell Sch. Dist., 850 F.3d 944, 950 (8th Cir. 2017), and Porter v. Bd. of Trs. of Manhattan Beach Unified Sch. Dist., 307 F.3d 1064, 1069–70 (9th Cir. 2002), and Muskrat v. Deer Creek Pub. Schs., 715 F.3d 775, 786 (10th Cir. 2013); Durbrow v. Cobb Cnty. Sch. Dist., 887 F.3d 1182, 1191 (11th Cir. 2018), and Cox v. Jenkins, 878 F.2d 414, 418–19 (D.C. Cir. 1989).
[28] See Luna Perez, 598 U.S. at 151.
[29] See, e.g., Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 526 (2007); E.L. ex rel Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 509, 514 (5th Cir. 2014).
[30] Robert C. Power, Help is Sometimes Close at Hand: The Exhaustion Problem and the Ripeness Solution, 1987 U. Ill. L. Rev. 547, 579 (1987).
[31] See Rosemary Queenan, Delay & Irreparable Harm: A Study of Exhaustion Through the Lens of the IDEA, 99 N.C.L. Rev. 985, 1007 (2021).
[32] Honig v. Doe, 484 U.S. 305, 367–27 (1988).
[33] Id.
[34] See Fry v. Napoleon Cmty Schs., 580 U.S. 154, 166 (2017) (quoting Ross v. Blake, 578 U.S. 632, 642 (2016)).
[35] Ross v. Blake, 578 U.S. 632 (2016). Compare 20 U.S.C. § 1415(l) (“[B]efore the filing of a civil action . . . seeking relief that is also available under this subchapter, [IDEA administrative procedures] shall be exhausted), with 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”).
[36] See Ross, 578 U.S. at 642.
[37] See id. at 643–44.
[38] This is not to suggest that there are automatic exceptions to statutory exhaustion requirements. Indeed, “[w]hen a statute imposes an exhaustion requirement, ‘Congress sets the rules.’” U.S. Navy Seals 1–26 v. Biden, 578 F. Supp. 3d 822, 830 (N.D. Tex. 2022) (quoting Ross, 578 U.S. at 639). However, Congress’s choice of using the word “available” in 20 U.S.C. § 1415(l) should be read like the Court interpreted the word “available” under 42 U.S.C. § 1997e(a).
[39] See, e.g., Frutiger v. Hamilton Cent. Sch. Dist., 928 F.2d 68, 74 (2d Cir. 1991). But see J.T. v. de Blasio, 500 F. Supp. 3d 137, 193–94 (S.D.N.Y. 2020) (“[F]utility is not measured by the fact that it takes time to hold hearings.”).
[40] See Porter v. Bd. of Trustees of Manhattan Beach Unified Sch. Dist., 307 F.3d 1064, 1069–70 (9th Cir. 2002).
[41] See S.H. ex rel. A.H. v. Plano Indep. Sch. Dist., 487 Fed. Appx. 850, 867–68 (5th Cir. 2012) (Haynes, J., concurring and dissenting).
[42] See Weixel v. Board of Educ., 287 F.3d 138, 149 (2d Cir. 2002) (“Exhaustion will be excused . . . where, as here, the parents have not been notified that such remedies were available to them.”); Pihl v. Mass. Dept. of Educ., 9 F.3d 184, 190–91 (1st Cir. 1993).