If it Looks Like a Duck, Quacks Like a Duck, it is Not a Duck

Sometimes I just don’t know until the last minute as to what case I will blog on for the week. I originally thought I would blog on a religious accommodation case. Then, this morning I saw a Fifth Circuit decision involving mandatory reassignment. Right when I was finishing up reading that decision, I saw an email come in from my colleagues in the Deaf and Hard of Hearing Bar Association saying that the Supreme Court had just decided Perez v. Sturgis Public Schools, opinion here, which I have previously blogged on before here. Once I saw that email, there was no question as to what I would blog on for this week. Since I have previously blogged on this case, there is no need to go into the facts of the case. So, the blog entry is divided into the categories of Court’s reasoning that plaintiff need not exhaust IDEA before filing suit for violations of the ADA, and thoughts/takeaways. The opinion was unanimous and was written by Justice Gorsuch.

 

I

Court’s Reasoning That IDEA Need Not Be Exhausted First Prior to Filing the ADA Claim

 

1. IDEA in 1415(l) has two critical features to it. First, it states that nothing in IDEA shall be construed to restrict the ability of individual to seek remedies under the ADA or other federal laws protecting the rights of children with disabilities. Second, IDEA contains a qualification prohibiting certain suits where those suits seek relief available under IDEA, then the procedures in IDEA must be exhausted first. With respect to that exception, IDEA goes on to say that affected children and their parents have a right to a due process hearing before a local or state administrative official followed by an appeal to the state education agency.
2. The first clause of §1415(l) focuses the attention on remedies. A remedy denotes enforcing a right and may come in the form of money damages, an injunction, or a declaratory judgment. The statute then proceeds to instruct that nothing in the IDEA shall be construed as restricting or limiting the availability of any remedies under other federal statutes such as the ADA.
3. The limiting language in the IDEA does not apply to all (emphasis in opinion), suits seeking relief that other federal laws provide. Instead, the administrative exhaustion requirement applies only (emphasis in opinion), to suits seeking relief also available under IDEA. That particular condition is not met in situations like Perez where the plaintiff brings a suit under another federal law for compensatory damages, which is a form of relief everyone agrees IDEA does not provide.
4. Admittedly, this logic treats remedies as being synonymous with the relief a plaintiff seeks. However, a number of contextual clues persuaded the Court that is exactly how an ordinary reader would understand this particular provision of the IDEA.
5. 1415(l) begin by directing a reader to the subject of remedies by offering first a general and then a qualifying rule on the subject. Also, in at least two other places, IDEA treats remedies and relief as synonyms. The Court could not conceive a persuasive reason why IDEA would operate differently only in this section.
6. 1415(i)(2)(C)(iii) direct courts in IDEA cases to grant such relief as the court determines is appropriate. That statutory instruction authorizes a court to grant as an available remedy (emphasis in opinion), reimbursement of past educational expenses. Elsewhere, IDEA, §1415(i)(3)(D)(i)(III), sometimes bars those who reject the school district’s settlement offer from recovering attorney’s fees for later work if the relief (emphasis in opinion), finally obtained is not more favorable than the offer. Here again, relief means the same thing as remedy.
7. Other provisions in the U.S.C. treat remedies and relief as synonyms. For example, in 18 U.S.C. §3626(d) that provision provides that the limitations on remedies in that section shall not apply to relief (emphasis in opinion), entered by a State court based solely upon claims arising under state law. Also, 28 U.S.C. §§3306(a)(2)-(3) indicatethat United States may obtain a remedy (emphasis in opinion), under this chapter or any other relief (emphasis in opinion), the circumstances may require.
8. Influencing the Court’s thinking is the fact that the second clause in §1415(l) refers to claims seeking (emphasis in opinion), relief available under IDEA. To seek relief is to ask for or request according to the Oxford English dictionary. Further, often enough the phrase seeking relief or some variant of it in the law refers to the remedies a plaintiff requests. For example, under the Federal Rules of Civil Procedure, a plaintiff’s complaint must include a list of requested remedies, or what the law calls a demand for the relief (emphasis in opinion), sought.
9. Many Supreme Court opinions similarly speak of the relief a plaintiff seeks as the remedies the plaintiff requests.
10. Fry is of no help to the defendant because it went out of its way to reserve the question now before the Court in Perez.
11. In Fry, the Court held that the IDEA exhaustion requirement does not apply unless the plaintiff seeks relief for the denial of a free and appropriate public education because that is the only relief IDEA administrative processes can supply. This case presents an analogous but very different question, which is whether a suit admittedly premised on the past denial of a free and appropriate education may nonetheless proceed without exhausting IDEA’s administrative processes if the remedy plaintiff seeks is not one IDEA provides. In either case, a plaintiff need not exhaust administrative processes under IDEA because those processes cannot supply what the plaintiff seeks.
12. It is the Court’s job to apply faithfully the law Congress has written. It is not up to the Court to replace the actual text of the law with speculation as to congressional intent.
13. Under Supreme Court decisions, a plaintiff who files an ADA action seeking both damages and the sort of equitable relief IDEA provides may find his request for equitable relief barred or deferred if he has yet to exhaust IDEA remedies.
14. It isn’t difficult to imagine that a rational Congress might have sought to temper demand for administrative exhaustion when a plaintiff seeks a remedy IDEA can supply with a rule of not requiring exhaustion when a plaintiff seeks a remedy IDEA cannot provide.
15. It isn’t necessary for the Court to deal with the issues raised at oral argument about whether a judge made futility exception exists and whether Perez can obtain compensatory damages in his title II of the ADA suit because there isn’t any reason to address those issues at this time in light of the reasoning in this opinion. In the proceeding below, the court held that the IDEA exhaustion requirement included plaintiff’s ADA lawsuit and that is simply not the case.

 

II

Thoughts/Takeaways

 

1. Unanimous opinion! From the oral argument, it looked like it might have been Justice Alito in sole dissent.
2. The issue of when a free appropriate public education is involved will now become paramount. We previously predicted that might be the case in this blog entry when we discussed a case talking about how a free appropriate public education under IDEA necessarily involves specialized instruction. Expect lots and lots of litigation over whether specialized instruction is involved. 504 plans can include specialized instruction pieces. Plaintiff attorneys may want to think twice about doing that if they want to avoid exhaustion litigation.
3. A plaintiff will have to exhaust administrative remedies where they have both IDEA concerns as well as ADA concerns.
4. School districts often have an internal procedure for dealing with both IDEA and §504/ADA claims that are identical to each other. That simply will not work anymore.
5. 504 also refers to a free and appropriate public education but that does not even come close to the same meaning as a free and appropriate public education under IDEA. This case makes it important that §504 plans do not blur into the specialized instruction of IEP’s (See also 2 above). Think of §504 as getting a person with a disability to the same starting line. On the other hand, think of IEP’s as trying to achieve specific goals while utilizing specialized instruction.
6. Per Cummings, which we discussed here, a §504 claim does not allow for emotional distress damages.
7. The Court specifically says that it is not going to deal with the question of whether title II of the ADA allows for compensatory damages. I do expect that question to come before the Court eventually. There are two things to keep in mind with respect to that. First, the remedy provisions of title II of the ADA, 42 U.S.C. §12133, refers to 29 U.S.C. §794a in total and not to any specific provision. Therefore, the argument is created that all of the remedies in §794a are in play. Second, title II of the ADA is not spending clause legislation but legislation based upon enforcing the rights of persons with disabilities per the 14^th amendment to the U.S. Constitution.
8. In my experience with matters that have come across my desk, school districts are very familiar with IDEA. They are also familiar with §504 with respect to “§504 plans.” They are less familiar with §504 in general. They are often not as aware as they should be about title II of the ADA. This case forces school districts get up to speed on title II of the ADA and on §504 outside of the “504 plans.”
9. In light of this decision, this blog entry discussing how IDEA is fundamentally a matter of specialized instruction is now mandatory reading.
10. It will be interesting to see if school districts try to convert §504 plans to IEP’s to ensure that IDEA processes become involved.
11. 504 damages means having to show intentional discrimination, such as deliberate indifference per this case.
12. This decision definitely changes the balance of power between school districts and the parents of those with kids with disabilities.
13. Did I mention that the decision was unanimous?

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