On October 31, 2016, the Supreme Court heard oral arguments regarding a petition for certiorari in the case of Fry v. Napoleon Community Schools, 2017 U.S. LEXIS 1427, 2017 WL 685533 (February 22, 2017). The dispute originated from the use of a service dog by a minor child while attending primary school. The questions raised were whether denial of the use of the service dog was an issue that required exhaustion under the Individuals with Disabilities Education Act^[1] (“IDEA”), or whether the denial preempted the exhaustion requirements based on futility to be addressed by discrimination under the Title II of the Americans with Disabilities Amendments Act of 2008^[2] (“ADAA”), in compliance with Section 504 of the Rehabilitation Act (“§ 540”)^[3]. The petition for certiorari was granted due to conflicts between the Circuits regarding the interpretation of the exhaustion requirement of IDEA. The opinion of the Court was decided on February 22, 2017.

This article reviews the procedural history of Fry v. Napoleon Cmty Sch. from its inception through to the recent Supreme Court decision. The article then explains the background on the IDEA: the exhaustion requirement, beginning with the legislative requirement of a free appropriate public education (“FAPE”) and the standard for an individual education program (“IEP”) for children with disabilities. Followed by discussion of § 1415(l), the legal interpretations and circuit conflicts regarding exhaustion. After that, I briefly discuss ADA Title II and the Rehabilitation Act § 504. The section on the Fry Analysis provides a breakdown of the guidance opined by the Court to help lower courts distinguish when exhaustion applies and when an exception to exhaustion applies. Finally, the conclusion provides an overview of the Fry Analysis and the impact of the Court’s analysis on Fry.

PROCEDURAL HISTORY

The procedural history of this case began in the District Court Eastern District of Michigan Southern Division on January 10, 2014; the District Court granted the defendants’ motion to dismiss on the pleadings. The plaintiffs appealed and the case proceeded through the Sixth Circuit Court of Appeals; affirmed June 10, 2015, rehearing en banc denied (August 5, 2015). A petition for certiorari was filed with the United States Supreme Court October 15, 2015; granted June 28, 2016. The merits of the case were heard by oral arguments before the Court on October 31, 2016. On February 22, 2017 the Court vacated the judgement and remanded the case back to the Sixth Circuit Court of Appeals for further proceedings.

The foundation for the case of Fry v. Napoleon Community Schools, et al.,^[4] began in October 2009 after the Napoleon Community Schools, et al., ultimately refused to allow, 5 year old, E.F. to use her service dog “Wonder” while at school. The service dog was clinically prescribed 2008 to assist with mobility issues for a severe form of spastic quadriplegic cerebral palsy. Wonder, a Goldendoodle dog, was procured and trained to assist E.F. “in a number of ways, [to include], 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, helping her transfer to and from the toilet.”^[5] Prior to enrollment at Ezra Eby Elementary School for the 2009-2010 school year, the parents of E.F. notified Napoleon Community School (“Napoleon”) and Jackson County Intermediate School District (“Jackson County”) of their intentions for E.F. to use a service dog. Initially, Napoleon denied use of the service dog in October 2009. In January 2010, an “IEP team concluded that EF was successful in the school environment without Wonder, and that all of her ‘physical and academic’ needs were being met”^[6] by the IEP that had been established. Sometime after the IEP meeting in January, Napoleon agreed to allow E.F. a trial period of thirty (30) days with Wonder beginning on April 12, 2010; an agreement achieved through negotiations between the Fry’s and Napoleon.

Wonder was permitted in the school, but was restricted to the back of the classroom. Wonder was not permitted “to accompany and assist during recess, lunch, computer lab and library.”^[7] Wonder was notably prohibited from assisting E.F. with activities that involved “walking”^[8] and toileting. Due to the School’s limiting treatment, the Fry’s filed a complaint on July 30, 2010 with the Department of Education Office of Civil Rights (“OCR”). It is at this juncture where the legal lines diverge between the substantive and procedural requirements of IDEA and the substantive requirements of ADAA.

While awaiting a response from OCR, E.F. was homeschooled. Two years after the complaint was filed, the Fry’s received a disposition letter from OCR, May 3, 2012, which reported that the School had “violated rights under Title II [ADA], Section 504 of the Rehabilitation Act, and the federal regulations implementing those laws.”^[9] In December 2012, the Fry’s filed a three-count complaint with the Eastern District Court of Michigan. Count I stated a cause of action for violation under the Section 504 of the Rehabilitation Act, Count II stated a cause of action for violation under the ADAA, and Count III claimed a violation under the Michigan Persons with Disabilities Civil Rights Act. On January 18, 2013, the court dismissed the state-law claim.^[10]

On January 10, 2014, the Eastern District Court granted the defendants’ motion to dismiss on the pleadings, dismissing the complaint without prejudice, concluding that the “IDEA’s exhaustion requirement was triggered”^[11] contrary to the Fry’s position regarding the ADAA and § 504.  The court acknowledged that the Fry’s did not make an express claim under IDEA and in fact in their response brief expressly disclaimed IEP inefficacy. The court none-the-less supplanted the exhaustion requirement finding it “irrelevant that Plaintiff’s did not expressly plead an IDEA claim.”^[12] The Fry’s timely filed an appeal with the Sixth Circuit.

The Sixth Circuit Court of Appeals affirmed the Eastern District Court of Michigan.^[13] Judge Rogers, joined by Judge Donald, expounded on the District Court’s decision to grant the motion to dismiss premised on the exhaustion requirement of IDEA, 20 U.S.C. § 1415(l). In Fry, the Sixth Circuit believed exhaustion under IDEA to be the precursor to relief under ADAA and § 504 in opposition to the Ninth Circuit in Payne holding that “Non-IDEA claims that do not seek relief available under the IDEA are not subject to the exhaustion requirement.”^[14] J. Rogers—concerned about parties evading IDEA requirements by utilizing the alternative federal regulations for money damages—concluded that the “IDEA exhaustion requirement applies to the Fry’s claim. . . . if they seek ‘relief that is also available’ under IDEA, even if they do not include IDEA claims in their complaint.”^[15] Fry’s did not seek relief or include claims under IDEA because it was their contention that E.F. had suffered harm from discrimination under the ADAA, a non-IDEA claim. The posture of the Sixth Circuit court relied on the opinion of the court in Cave wherein the Second Circuit rejected the “appellants’ argument that their § 1983 discrimination claim [was] not subject to the exhaustion rule.”^[16] Furthermore, the Fry court found, “A request for a service dog to be permitted to escort a disabled student at school [was] an ‘independent life tool’ [and] not entirely beyond the bounds of the IDEA’s educational scheme”^[17]; an issue that could be resolved through the exhaustion process.

In considering the first part of a two-part analysis of the IDEA’s purpose for the exhaustion requirements identified in Fry^[18], the Sixth Circuit opined, like the Second Circuit, that the IDEA held greater weight than the ADAA discrimination claims. The court concluded that Fry’s equal access claim should have been resolved through the IEP process to allow State agency compliance and local expert analysis. The court pointed to the IEP team’s conclusion that “E.F. was being successful in the school environment without the service animal . . . all of her needs were being met by the program and services in place, and  . . . adding the service animal would not be beneficial.”^[19]  This was, in part, consistent with the Fry’s position that they were not dissatisfied with the IEP^[20] and likely the reason they did not argue futility^[21] under Covington.^[22] The Fry’s did not object to the IEP that included a human aide. They claimed harm from the denial of equal access by a public entity, when Napoleon denied use of Wonder the service dog in concurrence with the IEP which provided educational benefits and academic success for E.F.

In the second part of the purpose analysis, the court emphasized the need for a “record.”^[23] The court addressed the significance of the exhaustion process as it pertains to the State’s power of compliance under federalism.  Under § 504, State agencies must comply with the regulations that “prohibit [] discrimination based on disability in ‘any program or activity receiving Federal financial assistance.’”^[24]  Therefore, as a matter of policy, because the State agencies are in a better position to determine the needs of a disabled child based upon a “fact-intensive analysis”^[25] and because the courts are “generalist with no expertise in the educational needs of handicapped students,”^[26] the creation of a record through the exhaustion process is essential.

In stark contrast to the opinion of J. Rogers, Judge Daughtrey, dissenting, pointed to the significance of the procedural safeguard exception to the exhaustion requirement under 20 U.S.C. § 1415(l), which had been upheld in Payne.^[27] J. Daughtrey noted that, unlike the Sixth Circuit who has not as yet “articulated a comprehensive standard for determining when exactly the exhaustion requirement applies,”^[28] the Ninth Circuit favorably articulated a “relief-centered approach”^[29] that requires “exhaustion in three situations.”^[30] J. Daughtrey emphasized that the Fry claim was a non-IDEA claim and the exhaustion requirement was “futile”^[31] because allowing the service dog to attend with E.F. is more about a “school policy”^[32] change rather than an IEP exhaustion requirement. The school had a policy in place that would allow “guide dogs,”^[33] but not service dogs.  J. Daughtrey concluded that the majority erred and that the case should have been remanded to allow the Fry’s the opportunity to show an exception to the exhaustion requirement.

The Sixth Circuit affirmed the District Court and the Fry’s timely petitioned for certiorari. On February 22, 2017, in an opinion authored by Justice Kagan, the Court vacated the judgment and remanded the case for further proceedings; holding that the statutory standard for the exhaustion requirement is based upon the “gravamen”^[34] of the complaint.

IDEA: THE EXHAUSTION REQUIREMENT

The exhaustion requirement is a component of the formal process included in the IDEA, 20 U.S.C. §§ 1400 – 1482. This formal process provides protection for children with disabilities as well as guidance and protection for the educational agencies that provide educational services. The “central mandate of the IDEA is to provide disabled students with a free appropriate public education [“FAPE”] in the least restrictive environment.”^[35] A FAPE is provided by the guidance of an individualized education program (“IEP”), “as defined in 20 U.S.C. § 1414(d).”^[36] If a dispute about the IEP arises, “exhaustion is required”^[37] before seeking relief through a civil action. Unless, exhaustion would be “futile.”^[38] 

1. F.A.P.E.

For a State to be eligible to receive federal funding under the requirements of the IDEA,

it must follow the guidelines established in § 1412 to provide a FAPE.  The State’s requirement to provide a FAPE “that emphasizes special education and related services” is to meet a disabled child’s individualized and “unique needs.”^[39] This in turn will help the child to be better prepared for “further education, employment, and independent living.”^[40] A FAPE “consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruction . . . . [T]he definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State’s education standards, approximate the grade levels used in the State’s regular education, and comport with the child’s IEP.”^[41]

2. I.E.P.

An IEP is a “written statement for each child with a disability that is developed,

reviewed, and revised in accordance with”^[42] section 1414(d), individualized for the specific needs of that child with a disability.

The creation of an IEP is accomplished through the joined efforts of the child’s parents and the IEP team, which generally includes “at least one of the child’s regular education teachers, at least one of the child’s special education teachers, and a representative of the ‘local education agency’ who is qualified in special education, knowledgeable about the general curriculum, and knowledgeable about the local education agency’s resources.”^[43]

If, during this process or sometime after, a parent or teacher feels that the IEP is insufficient to meet the child’s special needs or that the designated placement is improper, the IEP may be challenged. “Children with disabilities and their parents are provided with the extensive procedural protections set out in 20 U.S.C. § 1415.”^[44]

Once a complaint is filed the procedural safeguards of § 1415 take effect. Ideally, the resolution process and agency determination should be completed “within [approximately] 105 days [after] the initial complaint.”^[45] This process provides the “aggrieved parties with the opportunity to mediate their disputes, § 1415(e), to secure an impartial due process hearing to resolve certain differences with state agencies, § 1415(f), and to appeal any decision and findings to the state education agency, § 1415(g).”^[46] If the aggrieved party has completed the exhaustion provisions listed in the procedural safeguards, but has still not obtained the relief they are seeking, they may then turn to the provisions of § 1415(l) for redress before the court.

3. 20 U.S.C. § 1415(l)

The exhaustion requirement of § 1415(l) was established as part of the procedural safeguards to ensure that parents and their children with disabilities were guaranteed a FAPE by “[a]ny State educational agency, State agency, or local educational agency”^[47] that receives federal funding under the IDEA. The exhaustion requirement has “clear policy justifications: ‘States are given the power to place themselves in compliance with the law, and the incentive to develop a regular system for fairly resolving conflicts under the Act.’”^[48] The Ninth Circuit deemed the exhaustion requirement an “affirmative defense.”^[49] 

One of the primary and heavily disputed provisions of the exhaustion requirement was added as part of the Handicapped Children’s Protection Act of 1986^[50] (“HCPA”) following the Supreme Court decision in Smith v. Robinson.^[51]  The Ninth Circuit in Payne found that the Smith Court’s interpretation^[52] of congressional intent—“to eliminate a plaintiff’s ability to seek relief”^[53] for equal protections claims—was what promptly inspired Congress to clarify their intent, “codified in § 1415(l).”^[54] 

A majority of courts have continued to hold that “exhaustion is required at a minimum when the claim explicitly seeks redress for a harm that IDEA procedures are designed to and are able to prevent.”^[55] The Seventh Circuit “required exhaustion when ‘both the genesis and the manifestations of the problem were educational.’”^[56] But, sometimes there are “unique circumstances.”^[57] “[P]arents may bypass the administrative process where exhaustion would be futile or inadequate.”^[58] In Covington, the plaintiff was seeking “money damages”^[59] that were not available through the administrative process. The Sixth Circuit, in Covington, held that although a claim for money damages is not automatic, “in this case exhaustion would be futile.”^[60]

Instead of an injury-centered approach previously held, the Ninth Circuit in Payne moved to a “relief-centered approach”^[61] to more readily interpret the exhaustion requirements of § 1415(l). Not all disputes that arise during the education process fall neatly into the exhaustion requirements scheme. Some come under “a theory of ADA Title II or Section 504 liability [that] need not be predicated on a denial of a FAPE.”^[62]

ADAA TITLE II AND REHABILITATION ACT § 504

Title II^[63] of the Americans with Disabilities Amendments Act of 2008 (“ADAA”) is a substantive antidiscrimination law that provides protection for persons with disabilities and damages for willful discrimination. Section 504^[64] of the Rehabilitation Act expressly provides protection for persons with disabilities from discrimination by entities in receipt of federal funding.

A. ADAA TITLE II

ADAA Title II addresses discrimination by a public entity against a person with a disability. Disability under the law is defined as “a physical or mental impairment that substantially limits one or more major life activities.”^[65] A major life activity includes “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”^[66] Some disabling conditions are visible and obvious. Some are not, they are considered invisible. ADAA Title II expressly provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”^[67] Public entities^[68] include, but are not limited to, law enforcement agencies, government buildings, cities, County school boards, and schools.

Discrimination by a public school can occur through the denial of equal access into school buildings, or denial of the benefit of services provided through that public school entity, through express policies or refusal to change policy.^[69] This is the essence of the equal protection claim by the Frys who did not argue futility or exhaustion for denial of a FAPE, but rather their claim was for equal protection and access under Title II.^[70] The denial of equal access was for E.F.’s use of the service dog to assist with her disability, not her education. The Fry’s claim for Title II discrimination was emphasized in their oral argument to the court and was analogized to a “disabled parent visiting the school [who] would be entitled to the same accommodation.”^[71] The Fry’s argument was based on findings in Sullivan v. Vallejo City Unified Sch. Dist.,^[72] which reasoned that the IDEA claims for “denial of a FAPE”^[73] and ADAA or Rehabilitation claims were distinctly different.

B. REHABILITATION ACT § 504

The Rehabilitation Act § 504 prohibits discrimination by an entity that is the recipient of federal funding.^[74] To state a claim under § 504, a person must show they are: “(1) ‘handicapped,’ (2) ‘otherwise qualified’ to participate in the federally financed program and has been excluded from participation by reason of his or her handicap, and that (3) the relevant program receives federal financial assistance.”^[75]

FRY ANALYSIS

The Supreme Court heard oral arguments for Fry v. Napoleon Cmty. Sch. on October 31, 2016. On February 22, 2017, the Court rendered its decision to vacate the judgment and remand the Fry case back to the lower court for further analysis. The decision of the Court held that the proper analysis for making a determination about an exception to the exhaustion requirement under 20 U.S.C. § 1415(l), one must look to the “substance” or the “gravamen”^[76] of the complaint.

The Fry case was the culmination of the conflicts between the Circuit Courts regarding how to interpret § 1415(l)—the exhaustion requirement of the IDEA—as it applies to claims for injury or relief under ADAA Title II, Rehabilitation Act § 504 or other federal laws. The argument presented by the Fry’s, the petitioners, was that the “exhaustion requirement of the IDEA”^[77] did not apply because they made a claim for relief under Title II and § 504.^[78] The respondents argued that the exhaustion requirement did apply because the use of a service dog at school was an “educational accommodation.”^[79]

The Court confirmed that the exhaustion requirement of the IDEA § 1415(l) does not limit remedy under the Constitution, the ADAA, § 504 or other federal laws “except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.”^[80] The Court found the fine line to be: “except that.”^[81]

In the statutory language of § 1415(l), the language in the section prior to^[82] the phrase “except that”^[83] reaffirms the legislative mandate of the HCPA.^[84] The “first half” is considered a “separate vehicle, . . . for ensuring the rights of handicapped children’” beyond the constraints of the IDEA exhaustion requirement. However, the language of the section after^[85] the “except that” phrase, the “second half, . . . imposes a limit on the ‘anything goes’ regime, in the form of an exhaustion provision.”^[86] The Court upheld the exhaustion requirement of the IDEA as it pertains to denial of a FAPE.

The Court acknowledged that pleadings can be misleading and may cause confusion^[87] in discernment of the actual claim for relief the party is seeking under §1415(l). To address the concerns about “artful pleading”^[88] the Court provided guidance to distinguish between the denial of a FAPE under the IDEA or discrimination under the ADAA, § 504 and other federal law. The key, the Court pointed out, is to determine if the claim “seeks relief that is also available”^[89] under the IDEA. To determine whether the relief a party seeks is available under the IDEA, “a court should look to the substance, or gravamen, of the plaintiff’s complaint.”^[90]

The gravamen of the complaint will divulge the substance, “not surface,”^[91] of the relief the party is seeking. The use of “magical words”^[92] will not allow the exhaustion requirement to be bypassed if relief can be provided through the IDEA.^[93] Artful pleading that avoids the use of the term “FAPE or IEP,”^[94]  will have no bearing on the “gravamen”^[95] of the complaint if the substance is “denial of an appropriate education.”^[96] If the “gravamen of the complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way,” exhaustion is required.^[97]

Determination of the gravamen of a complaint for relief under Title II and §504, which may have “some overlap” with the IDEA, will “address disability-based discrimination.”^[98] To distinguish discrimination from denial of a FAPE, the Court offers “a pair of hypothetical questions.”^[99] The first question encourages consideration of a scenario outside the educational environment. Specifically, could the claim for discrimination be brought if it occurred in “a public theater or library?”^[100] The second question encourages consideration of a scenario inside the education environment as it would pertain to an adult visitor or employee. Specifically, could the adult visitor or employee “press the same grievance”^[101] regarding a disability-based discrimination? If these questions can be answered in the affirmative and do not “allege denial of a FAPE,”^[102] the substance of a complaint would be deemed a discrimination claim under Title II and § 504.

An additional “sign” to aid in discernment between an IDEA claim and an ADAA claim is to look to “the history of the proceedings.”^[103]  If the claim was initially pursued under the IDEA process to address denial of a FAPE, but then shifted to a “judicial proceeding” in an effort to avoid the exhaustion process, it was likely a “strategic calculation” to maximize the remedy.^[104] The history of this claim would demonstrate that the gravamen of the complaint is an IDEA claim. If, however, the complaint alleges only “disability-based discrimination”^[105] without any genuine issues as to the FAPE, the history of the claim would demonstrate that the gravamen of the complaint is an ADAA claim.

The Fry Analysis provides courts with guidance on how to distinguish when the exhaustion requirement of § 1415(l) is to be applied and when an exception to the exhaustion requirement applies, for children with disabilities. It remains to be seen if the application of the Fry Analysis proves to be exhausting. 

CONCLUSION

In an effort to continue to protect the legal rights of children with disabilities in an education setting, the Fry Court has provided the lower courts with an analysis for how to rule on cases that involve the exhaustion requirement of 20 U.S.C. § 1415(l); not to the exclusion of other federal remedies. There are occasions when children with disabilities suffer discrimination as well as denial of a FAPE.  There are occasions when children with disabilities suffer discrimination without denial of a FAPE.

The gravamen of the complaint combined with the history of the proceedings is the essential analysis to discern which portion of § 1415(l) will apply for the relief and remedies the party is seeking. If a complaint seeks relief which includes the denial of a FAPE, exhaustion is required. If a complaint seeks relief that does not pertain to the denial of a FAPE but requires a remedy, as an exception, exhaustion is not required. That is the analysis prescribed by the Court. 

The Fry case was initiated in 2009 on a claim for discrimination when E.F. was denied use of her service dog while attending school. By 2012, the Fry’s were seeking relief and money damages under Title II and § 504. In 2014, the District court, granted a motion to dismiss on the pleadings, citing that Fry’s failed to comply with the exhaustion requirement of the IDEA. In 2015, the Sixth Circuit affirmed the District court concluding that although the Fry’s had not claimed a denial of a FAPE, the use of the service dog at the school was an implied educational benefit and therefore required compliance with the exhaustion process in § 1415(l). On February 22, 2017, the Supreme Court vacated the judgment of the lower court and remanded the case for further evaluation under the Fry Analysis to determine if exhaustion or an exception to exhaustion applied. The Fry case has gone all the way to the Supreme Court, “except that” they, with wonder, still have no resolution.

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