SPECIAL EDUCATION Are You Keeping Pace With the Supreme Court? Beth - PDF document

SPECIAL EDUCATION Are You Keeping Pace With the Supreme Court? Beth A. Bourassa, Esq. July 18, 2017 Whiteman Osterman & Hanna LLP One Commerce Plaza Latham, New York Albany, New York 12260 P: 518 ‐ 487 ‐ 7617 E: bbourassa@woh.com W: www.woh.com 1 Earlier this year, the United States Supreme Court issued two decisions affecting the rights of students with disabilities and their parents, and the obligations of school districts. 2 1

• What if anything has changed, in this state, as a result of those two decisions? • How can school administrators best protect the school district, and ensure that the special needs of students with disabilities are met, in light of these decisions? 3 Statutory Background Three relevant Federal statutes: • Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and implementing regulations at 34 C.F.R. Parts 300 ‐ 303; • Americans with Disabilities Act (ADA), Title II (places of public accommodation), 42 U.S.C. § 12131 et seq ., and implementing regulations at 28 C.F.R. Part 36; and • Section 504 of the Rehabilitation Act (federally funded public entities), 29 U.S.C. § 794 and implementing regulations at 34 C.F.R. Parts 100 ‐ 105. 4 2

Statutory Background The IDEA and corresponding New York State law (N.Y. Education Law §§ 4401 ‐ 4410 and implementing regulations at 8 N.Y.C.R.R. Parts 200 ‐ 201) require a school district to provide a “free appropriate public education” (FAPE) to students with a covered disability. An “individualized education plan” (IEP) “serves as the primary vehicle for providing each child with the promised FAPE.” Fry, 137 S.Ct. at 749. 5 Statutory Background Very generally, the IEP must: • adequately describe the student’s present levels of achievement and individualized needs; • establish measurable annual goals tailored to each student’s individualized needs; and • provide appropriate special education and related services to enable the student to make progress in the general education curriculum and in meeting the annual goals. 6 3

Statutory Background When parents challenge the adequacy of their child’s IEP, or the implementation of the IEP, and allege that their child has been denied a FAPE, parents must first bring their claims through a two ‐ tiered administrative process: “due process hearing” before an “impartial • hearing officer” (IHO); and appeal to the “State Review Officer” (SRO). • Only after completing that process may parents sue in state or federal court. 7 Statutory Background • The ADA and § 504 are “non ‐ discrimination” statutes • The ADA and § 504 apply to a broader range of disabilities, and apply to both children and adults. • The ADA and § 504 impose lesser substantive and procedural obligations on school districts than do the IDEA and corresponding New York State special education laws. – Reasonable accommodation to provide equal access. – Undue burden limit. 8 4

Statutory Background • Under the ADA and § 504, an aggrieved individual may sue directly in court, without first “exhausting” any administrative remedies. • Also unlike the IDEA and corresponding New York State special education laws, monetary damages are available under the ADA and § 504. 9 Statutory Background In this state, there is probably no state law analogue to the ADA and § 504, with respect to a parent’s right to obtain monetary damages in court from a school district for disability ‐ based discrimination against student. • The N.Y. Human Rights Law, N.Y. Exec. Law § 290 et seq . (HRL) does not apply to students. North Syracuse Central School District v. N.Y. State Div. of Human Rights, 19 N.Y.3d 481, 495 (2012). • The Dignity for All Students Act, N.Y. Education Law §§ 10 ‐ 18 (DASA) probably does not provide a private right of action for monetary damages. Motta v. Eldred Cent. School Dist., 141 A.D.3d 819, 820 (3d Dep’t 2016); Terrill v. Windham ‐ Ashland ‐ Jewett Central School District, 176 F.Supp.3d 101, 108 ‐ 09 (N.D.N.Y. 2016). 10 5

When May Parents of Students with Disabilities Go Directly to State or Federal Court to Sue a School District? Fry v. Napoleon Community Schools, 137 S.Ct. 743 (Feb. 22, 2017) • Hailed by parent advocates as a landmark decision that ensures “better access to the court system without having to jump through administrative hoops.” 11 Fry v. Napoleon Community Schools In Fry, the U.S. Supreme Court examined the interrelationship of the IDEA, the ADA, and § 504, and held that exhaustion of administrative remedies is not required, and a parent of a student with a disability may sue directly in court: “when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee . . . of a free appropriate public education.” Fry, 137 S.Ct. at 748. 12 6

Factual Background Plaintiffs in Fry were the parents of E.F., a Kindergarten student with cerebral palsy. E.F. had a service dog named “Wonder.” Wonder was reportedly trained to assist E.F. by: • retrieving dropped items; • helping her balance when she uses her walker; • opening and closing doors; • turning on and off lights; • helping her take off her coat; and • helping her transfer to and from the toilet. Fry, 137 S.Ct. at 751. 13 Factual Background E.F.’s elementary school (in Michigan) refused to allow Wonder to accompany her to Kindergarten. E.F.’s IEP provided her with a 1:1 aide at all times. Because E.F.’s needs could be met by the aide, the school concluded that Wonder was superfluous. Fry, 137 S.Ct. at 751. 14 7

Factual Background E.F.’s parents found another school district for her, where Wonder was welcome. They then sued E.F.’s former school district in federal court. The parents brought claims under the ADA and § 504, alleging that the defendant school district: • denied E.F. equal access to its programs; • refused to reasonably accommodate E.F.’s use of her service animal; and • otherwise discriminated against E.F. on the basis of her disability. Fry, 137 S.Ct. at 751 ‐ 752. 15 Factual Background The defendant school district moved to dismiss the parents’ federal court lawsuit, on the grounds that this was really a FAPE claim in disguise, such that the parents were required to exhaust their administrative remedies under the IDEA. The parents, however, contended that they were not alleging a denial of FAPE. It was undisputed that E.F.’s IEP, including a 1:1 aide, had offered her a FAPE. Fry, 137 S.Ct. at 752. 16 8

The Fry Court’s Analysis and Ruling The Court concluded that exhaustion of administrative remedies is required only when the “lawsuit seeks relief for the denial of a free appropriate public education.” • The “gravamen” or substance of the claim(s) is controlling, rather than “artful pleading.” Fry, 137 S.Ct. at 754 ‐ 755. 17 The Fry Court’s Analysis and Ruling The majority (7 justice) opinion offered two “clues” to guide the lower courts in determining whether a complaint seeks relief for a denial of FAPE under the IDEA, such that exhaustion of administrative remedies is required. 18 9

Clue #1 Ask two hypothetical questions: 1) Could the student have brought the same claim if the alleged conduct had occurred at a different public facility, such as a public theatre or library? 2) Could an adult at the school, (either an employee or a visitor) have brought the same claim against the school district? Fry, 137 S.Ct. at 756. If the answer to both questions is “yes,” the claim “probably” does not concern an alleged denial of FAPE, and the parents may proceed directly in court. 19 Clue #1 Examples: A. Denial of a service dog not a FAPE claim – B. Lack of wheelchair access ramps not a FAPE claim – C. Failure to provide a remedial math tutor to a student with a learning disability is a FAPE claim – Fry, 137 S.Ct. at 756 ‐ 758. 20 10

Clue #2 Did the parents previously invoke the IDEA’s due process procedures to resolve the dispute, thus starting to exhaust administrative remedies “before switching mid ‐ stream?” If so, the parents’ claim is more like a FAPE claim, and the parents may now be foreclosed from proceeding directly in court. Fry, 137 S.Ct. at 757. 21 Was the Fry Court Clueless? The concurring opinion (by Justices Alito and Thomas) expressed a concern that the “clues” offered by the majority would be “likely to confuse and lead courts astray.” Fry, 137 S.Ct. at 759. 22 11

Was the Fry Court Clueless? 1) The same conduct might violate all three statutes (IDEA, § 504, and ADA). 2) Parents might have legitimate reasons for “switching mid ‐ stream,” such as advice of counsel. 3) Would evidence of any prior administrative steps by the parents ever be part of the court record, on the school district’s motion to dismiss for failure to exhaust administrative remedies? 23 Cases Applying Fry Harrington v. Jamesville Dewitt Central School District, 2017 WL 1327719 (N.D.N.Y. April 11, 2017) • Plaintiff, a former high school student, was not classified as a student with a disability, but had: – medical diagnoses of severe depression and anxiety; and – a pattern of long ‐ term absences from school. • Plaintiff was found responsible for plagiarism on a paper for a writing course. As a result, he was given an “F” on the paper, assigned several days of detention, and not allowed to participate in the school play. • Post ‐ graduation, Plaintiff sued in federal court. He alleged various constitution claims and a § 504 claim. Harrington, 2017 WL 1327719 at *1 ‐ 3. 24 12