Today’s blog entry is the blog entry that I was going to do last week until the EEOC guidance on hearing disabilities in the workplace intervened. That particular guidance was the most personal one that I have ever written. Today, we go back to a more traditional type of blog entry. On January 18, 2023, oral argument occurred in Perez v. Sturgis Public Schools. Perez considers the question of whether a person is preempted from filing an ADA claim because the plaintiff had previously settled his IDEA claim. Perez doesn’t really answer the question as to when IDEA exhaustion required in the first place. What I am doing today is posting simultaneously two different blog entries because it gets real long otherwise. The first one is a discussion of the Perez oral argument and my thoughts takeaways on that. The second one is a discussion of Doe v. Knox County Board of Education, here, a published decision from the Sixth Circuit that goes into depth on what an IDEA FAPE is.
Perez Oral Argument
- Justice Thomas right out of the gate wondered if the ADA and the IDEA were two completely different types of remedies meant for two completely different types of things? He returned to that thought on more than one occasion. For example, he later said that where you had exhaustion requirements, the relief would normally be similar to the exhaust the claims, which is not the case when you compare IDEA with the ADA.
- Chief Justice Roberts essentially wondered about both IDEA and §504 both having free appropriate public education requirements (F.A.P.E.), and what that might mean for resolving the case.
- Justice Kagan wondered if a decision in favor of the student would lead to cases focusing on form over substance so that certain remedies were placed in a complaint just to avoid the exhaustion requirement. She also wondered about the parallel proceedings that would be created.
- Justice Jackson said that the plain meaning of both statutes projected that dual tracks (one for IDEA and one for ADA), were perfectly permissible. She also wondered whether this truly was a situation where a person was doing an end run around the IDEA.
- Justice Alito inquired whether the use of the term remedies and the use of relief in the IDEA exhaustion statute was of any significance. That is, are the two terms synonymous?
- Justice Alito also explored whether a settlement on an IDEA matter would activate a futility exception with respect to an ADA matter on the same facts.
- Justice Thomas wondered about the claim that is being exhausted, IDEA, doesn’t naturally fit the claim that the plaintiff is trying to pursue in this case (the ADA claim). In other words, normally informal, administrative, and then judicial proceedings are all about the very same thing pursuing similar remedies at different stages, which is not the case here. In response, the attorney for the student was unaware of any statute that had a similar exhaustion requirement as the IDEA does.
- Justice Alito wondered whether this case was about the denial of a FAPE? The student’s attorney admitted that a FAPE was involved but that wasn’t important to the case. In other words, Fry does not drive the issue here, which is a question of remedies and what happens to remedies under other laws when an IDEA case settles.
- Justice SotoMayor wondered whether the situation did not involve two separate proceedings mandated by circumstances creating a very odd creature.
- Justice Barrett inquired whether under a broad reading of IDEA’s exhaustion requirement that the only way to preserve an ADA claim would be to reject an IDEA settlement, which would also jeopardize attorney fees.
- Justice Jackson inquired about the legislative history behind the IDEA exhaustion statutory provision.
- Justice Alito wondered if the IDEA was not on the books, would the claim be a denial of a reasonable accommodation under the ADA.
- Justice SotoMayor asked whether the elements of an ADA claim and an IDEA claim were different. In responding to the question, the DOJ attorney (amicus to the student), also noted that the offenses under the two laws were different as well.
- Chief Justice Roberts wondered if the term relief and the term remedies in the IDEA exhaustion statutory provision did not in fact mean different things.
- Justice Alito wondered whether the ADA required a school to provide auxiliary aids regardless of the cost. The DOJ attorney responded in the negative to that because, as we all know, of the undue burden defense.
- Justice Alito inquired whether the IDEA may demand certain things that would even be more expensive than what the ADA demands.
- Justice Jackson wondered whether forcing people into IDEA to pursue ADA claims due to the IDEA exhaustion statutory provision limited remedies contrary to Congressional intent, which says that the exhaustion requirement in the IDEA is not meant to limit other remedies.
- Justice Barrett wondered about the ability to tack on compensatory damages at the end of a request for IDEA relief and whether that would even work.
- Justice SotoMayor wondered if there how much parallel litigation currently existed with respect to IDEA and the ADA. The DOJ attorney responded that IDEA relief was the first choice for parents and this parallel litigation is not something seen much.
- Justice Kagan wondered whether compensatory relief under title II of the ADA was even available after the Cummings decision. The DOJ attorney said they were not taking a position on that.
- Justice Thomas wondered why the school didn’t get a general release when it settled the IDEA claim.
- Justice Jackson wondered about the history of the IDEA exhaustion statutory provision in that Congress did not want all claims to go through the IDEA administrative process or they wouldn’t have put in this section a clause about not limiting other remedies.
- Chief Justice Roberts wondered whether the denial of a FAPE in an IDEA case constitutes the same harm as in an ADA case.
- Justice Kagan wondered how you could possibly be seeking relief under the IDEA if you are also seeking damages.
- Justice Jackson wondered whether the legislative history of the IDEA exhaustion provision meant that the statutory provision only applied to cases where the hearing official could grant the relief requested.
- Justice Gorsuch wondered if under the school district’s analysis of the case, it meant ADA claims would be prevented unless the IDEA was exhausted first, assuming there was no waiver. The school district attorney agreed with that interpretation of their analysis.
- Justice Barrett wondered whether a broad IDEA exhaustion requirement would prohibit ADA claims altogether. Alternatively, whether it would only be a narrow world where ADA claims could be pursued at all under the school district’s analysis of the situation. In response, the attorney for the school district also brought up Cummings and its possible impact under title II of the ADA.
- Justice Jackson wondered whether a student would have to exhaust IDEA even if they did not want a FAPE?
- Justice Jackson also wondered whether a broad reading of the IDEA exhaustion requirement throws out the refusal to limit other remedies provision also appearing in that statutory provision.
- Justice Kagan wondered whether a broad reading of the IDEA exhaustion requirement would force plaintiff to turn down an IDEA settlement in order to pursue an ADA claim.
- Justice Kagan wondered if IDEA claims were not going to be the first choice of parents because those claims would get resolved much faster and more inexpensively than any I ADA claim. So, she wondered since parents always go IDEA why would that foreclose the ADA?
- Justice Barrett wondered whether a futility exception would not apply in the event of settlement and noted that a majority of the circuits dealing with the question had decided such was the case.
- Justice Thomas wondered if the school district’s interpretation of the situation would not require all ADA claims to go through the IDEA exhaustion process first.
- Justice Gorsuch wondered why does it even matter that the key focus of the complaint was based on IDEA given the text of IDEA.
- Justice Gorsuch wondered if the text of the IDEA is not pretty clear that it’s all about the relief under IDEA as to what is being limited by the exhaustion requirement and not anything else.
- Justice Jackson wondered whether what the person is seeking is what really matters. She also wondered whether disability discrimination claims need to be exhausted.
- Justice Jackson wondered if under the school district’s analysis, ADA claims would be prohibited if a FAPE was involved absent administrative exhaustion.
- Justice Kagan noted that Fry, which we discussed here, did not say anything whether exhaustion would be required if compensatory damages was being sought. In fact, the Court specifically reserved that question for a later time.
Thoughts/Takeaways on the Oral Argument
- It is a real dangerous game to predict results of Supreme Court cases based upon the questions asked in oral argument. I have done that before and have often failed in my predictions. I asked a person who had clerked for a federal appellate judge why I kept missing taking that approach. She informed me that the questions asked by federal appellate judges at oral argument should not be taken literally. That is, often those questions are asked for other purposes other than revealing where the specific judge or Justice might be leaning. All this said, it looks like this decision could very well go the way of the student with a disability. It probably helps that the facts are particularly egregious. What I found surprising from the oral argument was that Justice Thomas in particular seemed to be very much leaning in favor of the person with a disability, which is not usually the case with him.
- Behind Chief Justice Roberts questions was at least an implicit recognition that a FAPE under the IDEA and a FAPE under §504 are not at all the same thing. The former is based upon a set of goals and the IDEA focusing on specialized instruction, as we will discuss in the other blog entry posted today. The latter is all about getting a person with a disability to the same starting line as a person without a disability. Those two are very different concepts.
- Justice Kavanaugh didn’t say anything in the oral argument. So, no way to even guess which way he might be leaning. It is fair to say that Justice Alito was leaning in favor of the school district, which isn’t surprising.
- Hard to say about Justice Barrett. In the past, there have been some cases where oral argument suggested that she would leaning on the side of a person with a disability but it didn’t work out that way in the end. It is public knowledge that Justice Barrett has a child with Down syndrome. So, she might be particularly aware of the IDEA. What that awareness means for the case is very hard to say.
- There does seem, with the emphasis on “seems”, to be a majority of this court that will decide in favor of the student with a disability. It remains to be seen what the contours of that decision will be. One effect of that decision may mean that school districts will no longer, as many do, be able to insist that persons with disabilities in 504 plans have to go through the same administrative exhaustion process as students with disabilities with IEP’s.
- Just how far does Cummings, which we discussed here, go, i.e. whether title II of the ADA prohibits emotional distress damages, is on the mind of some of the Justices.
- What really is an IDEA FAPE all about? For the answer to that, please turn to the second blog entry that I am posting today discussing the case of Doe v Knox County Board of Education.