Last week the United States Supreme Court came down with the decision in Fry v. Napoleon Community Schools, the oral argument of which I discussed here. A whole bunch of people have blogged on the case, but I thought I would share my thoughts here. The blog entry is divided into three categories:  court’s reasoning; concurrence reaoning; and takeaways. The reader will probably want to read all of it. It was a unanimous decision with Justice Kagan writing the decision for the court and Justice Alito and Justice Thomas writing a concurring opinion.


Court’s Reasoning

  1. Exhaustion is not necessary when the gravamen (legalese for substance), of the plaintiff’s suit is something other than the denial, of the IDEA’s core guarantee of a, “free appropriate public education.”
  2. An eligible child acquires a substantive right to a free appropriate public education once a state accepts IDEA’s financial assistance.
  3. IDEA is not the only federal statute protecting the rights of students with disabilities. Of particular relevance, are title II of the ADA and §504 the Rehabilitation Act.
  4. Under title II of the ADA, public entities are required to make reasonable modifications to its policies, practices, or procedures when necessary to avoid such discrimination. Also, §504 of the Rehabilitation Act has also been interpreted by the courts as requiring reasonable modification to existing practices in order to accommodate persons with disabilities.
  5. To fall within the standard where the IDEA requires exhaustion, a suit must first seek relief for the denial of a free appropriate public education because that is the only relief IDEA makes available.
  6. If an accommodation is needed to fulfill the IDEA free appropriate public education requirement, under IDEA, the hearing officer must order relief. However, if that accommodation is not needed to fulfill the free appropriate public education requirement, the hearing officer under IDEA has no authority to order that relief even though other federal laws, such as title II of the ADA or the Rehabilitation Act might require the accommodation on one of those alternative grounds. The sole role of the IDEA hearing officer is to enforce the child’s right to a free appropriate public education.
  7. Where a suit is brought under a different statute and the remedy sought is not for the denial of a free appropriate public education, exhaustion of the IDEA processes is not required.
  8. A school’s conduct toward a child with a disability might injure that child in ways unrelated to her free appropriate public education, which would beaddressed by statutes other than the IDEA. Such a complaint seeking redress for harms independent of a free appropriate public education denial, does not subject itself to the IDEA exhaustion requirement because the only relief the IDEA makes available is relief for the denial of a free appropriate public education.
  9. The key is the substance of the complaint and not any, “magic words.
  10. IDEA protects only children and adolescents with respect to their schooling. On the other hand, title II of the ADA and §504 the Rehabilitation Act cover people with disabilities of all ages both inside and outside schools.
  11. IDEA guarantees individually tailored educational services, while title II and section 504 promise nondiscriminatory access to public institutions. It is possible that the same conduct could violate all three statutes. Nevertheless, the statutory differences are sufficient so that a complaint brought under title II and §504 might seek relief for discrimination independent of the IDEA free appropriate public education obligation.
  12. In figuring out whether the substance of the complaint involves something other than a free appropriate public education, one can look to several clues: A) could the plaintiff have brought essentially the same claim had the alleged conduct had occurred at a public facility that was not a school, such as a public theater or library?; and B) could an adult at the school, such as an employee or a visitor, have brought essentially the same claim? When the answer to both of these questions is yes, the complaint that does not expressly allege the denial of a free appropriate public education is also unlikely to be truly about that subject. If the answer to these two questions is no, then the complaint probably does concern a free appropriate public education.
  13. In fleshing out ¶ 12, Justice Kagan gives several examples, including: a child in a wheelchair suing the school for discrimination under title II because the building lacks access ramps; a teacher striking a student with a disability; a child with a learning disability suing under title II for failing to provide remedial tutoring in mathematics; and later on in the opinion, the situation of a child suing for the right to use his or her service dog.
  14. Besides the clues in ¶ 12 above, another signal that the substance of the suit is a denial of a free appropriate public education might emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA formal procedure to handle the dispute-thereby, starting to exhaust IDEA’s remedies before switching midstream. The plaintiff’s initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a free appropriate public education with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy. If there is a switch in processes, it is then up to the court to decide whether that switch reveals that the substance of the complaint is indeed the denial of a free appropriate public education and therefore, necessitates further exhaustion.
  15. The Court of Appeals used the wrong standard by looking to see whether the injuries were free appropriate public education focused in nature. The standard that should have been used is what was the substance of plaintiff’s complaint. Since information is lacking because the wrong standard was utilized, the court remanded the issue back to the Court of Appeals.
  16. The plaintiff’s complaint focused on equal access and nothing in the complaint suggest any implicit focus on the adequacy of the plaintiff’s free appropriate public education.


Concurrence Reasoning (Alito and Thomas):

  1. The clues offered by the court only makes sense if one assumes there was no overlap between the relief available under the IDEA and the relief provided by other laws, such as the Constitution, the ADA, and the Rehabilitation Act.
  2. The court admits in its opinion that such overlap exists.
  3. Since the clues only work in the absence of overlap, Justice Alito joined by Justice Thomas would not use them.
  4. The clue of how the proceedings start is ill advised. After all, it is easy to imagine circumstances where the parent starts down the IDEA road and then changes course and files an action under the ADA or the Rehabilitation Act seeking relief that the IDEA cannot provide. It is possible that the parents might be advised by their attorney that the relief they were seeking under the IDEA is not available under that law but is available under another. Or, the parents might change their minds about the relief that they want, give up on the relief that the IDEA can provide, and turn to another statute.
  5. Although the court provides these clues for the purpose of assisting the lower courts, Justice Alito joined by Justice Thomas was afraid that the clues may have the opposite effect by confusing and leading courts astray.



  1. My initial reaction is that I agree with Justice Alito and Justice Thomas regarding the clues section of the opinion. The laws certainly do overlap to quite a degree, especially when one considers that is that the rare IEP that does not have accommodations in it. Also, I also find it easy to imagine circumstances where parents, who very well may not be assisted by a lawyer or by an advocate at the initial stages, inadvertently start down the IDEA process before realizing that the IDEA process was not necessary in light of the facts being alleged. That said, to be fair to Justice Kagan, she did say that the court had an independent obligation to evaluate whether the switch revealed a complaint that at its core was about a free appropriate public education rather than something else. In essence, what Justice Kagan has done with the switch clue is to create a rebuttable presumption that the switch involved a complaint whose substance is about a free appropriate public education, which can be rebutted by a plaintiff showing to the contrary.
  2. The decision is a big win for students with disabilities, but it is going to make the life of lawyers representing students with disabilities much more complicated. Now, the incentives are going to be for the school district to put everything and anything in the IEP so that it can rely on the IDEA processes needing to be exhausted first, especially with Justice Kagan’s rebuttable presumption thrown in. On the other hand, if you are representing a student with a disability, you very well might want to consider having two plans for the student. One plan focusing on the free appropriate public education through the use of the IEP. Then, having a separate §504 plan focusing on all of the nonrelated reasonable modifications the student needs. That way, if something goes amiss with the §504 plan, you do not have to worry about the IDEA process. From a plaintiff’s side this approach makes a great deal of sense. However, there may be some resistance as school districts are not used to having both IEP’s and §504 plans simultaneously. Creating two separate plans simultaneously may be quite a complex task since, as mentioned above, it is the rare IEP that is focused on services only rather than a combination of services and accommodations. This also raises the question of whether the student with a disability can get by entirely with the § 504 plan rather than an IEP. That indeed may be possible in some cases but not in others.
  3. From reading the tone of this decision and the oral argument in Endrew, which was discussed here, it is pretty easy to predict that the court is going to say in Endrew that schools will have to do something more than the minimum to meet their obligation under IDEA.
  4. The rebuttable presumption also means that if an attorney does decide to go the route of not exhausting the IDEA process, it would be a good idea for the pleadings to clearly set forth what concerns would fall under the IDEA process and why the concerns of the claim being alleged are independent of that process. That task is made even easier if two simultaneous plans (IEP and §504), exist. This task is made more complicated by the fact that IDEA and title II of the ADA/§504 have different philosophies even though the term “free appropriate public education,” is used by both IDEA and §504. IDEA is all about setting goals and seeing if progress is met towards those goals. Whereas, §504 and the ADA are about figuring out the reasonable modifications that enable the student with a disability to get to the same starting line as others.
  5. I agree with Justice Alito and Justice Thomas that these clues are going to be locked in and that subsequent litigation is going to involve the application of the clues. I also agree that the opinion for the court may have underestimated the extent of the overlap between the laws and the complexity of disentangling that overlap.
  6. It isn’t unusual for school systems to issue the same packet of rights to parents for students with an IEP and for students with a §504 plan. While that may be a common practice, which was never supported by the law, it certainly isn’t supported by the law now. This case makes it quite clear that the rights under §504 and the ADA are entirely different than the rights under IDEA. It will be interesting to see how school districts inform parents, if at all, of the separate rights available to them when it comes to IDEA and §504/ADA.
  7. When a special education lawyer receives the case and it is possible that the accommodation/modification involved are §504/ADA focused rather than IDEA focused, the lawyer as a result of justice Kagan’s rebuttable presumption, is going to have to make an election at the top as to whether to go through the IDEA process or go to the courts under §504/ADA.