This blog entry discusses just what is an IDEA FAPE anyway. It is a Sixth Circuit published decided on January 4, 2023, in the case of Doe v. Knox County Board of Education, here. As usual the blog is divided into categories and they are: key facts taken directly from the opinion; issues presented; court’s reasoning that IDEA exhaustion is not required because a FAPE is not involved; court’s reasoning that plaintiff’s request for preliminary injunction must be referred to the lower court; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.



Key Facts Taken Directly from the Opinion


The complaint describes misophonia as “a disorder of decreased tolerance to specific sounds or their associated stimuli.” Id. According to Doe, the normal sounds of eating food or chewing gum cause her to suffer “great fear and anxiety.” Id., PageID 252. These common noises trigger a “fight or flight” sensation, forcing Doe to escape from areas in which she hears them. Id. They also exacerbate her recurring migraines. Id.

Before high school, Doe’s misophonia did not affect her academic performance. Id., PageID 255. Her private middle school barred students from eating food and chewing gum in classrooms. Id. She thus could attend class without incident and excelled at her academics. Id., PageID 253-54. Doe was a “straight A student” and National Junior Honors Society member. Id., 253, 255; Doe Decl., R.27-2, PageID 265.

According to Doe’s complaint, most of Knox County’s public high schools likewise bar students from eating food and chewing gum outside the cafeteria. Compl., R.27, PageID 255. Yet Doe decided to attend L&N STEM Academy. Id., PageID 250. This high school’s policy allegedly allows each teacher to decide whether students may eat food and chew gum on a class-by-class basis. Id., PageID 255-56. Some teachers, like Doe’s ninth-grade math teacher, prohibit food and gum, so she has flourished in this class. Id., PageID 256. The high school also prohibits eating food or chewing gum in areas with “expensive equipment,” such as digital-art classrooms. Doe Decl., R.27-2, PageID 266. But other teachers, like Doe’s ninth-grade history teacher, allegedly allow “rampant” eating and chewing. Compl., R.27, PageID 256. The high school also allows students to eat throughout an 80-minute elective (“Genius Hour”) that Doe would like to take. Id., PageID 257. L&N’s permissive policies have forced Doe to avoid this elective and to leave her regular classes about 50% of the time, rendering her “physically and emotionally exhausted” at day’s end. Id., PageID 256.

Doe’s parents repeatedly asked Doe’s teachers to ban eating and chewing during her classes. Id. But some teachers allegedly have refused on the ground that L&N’s official policy permits this conduct. Id., PageID 257. Doe’s parents thus turned to the school’s administrators, asking them for this accommodation about halfway through her ninth-grade year in December 2021. Id. The administrators denied the request. Id., PageID 258-59. But they noted that Doe’s parents could appeal this decision administratively. Id., PageID 259 n.8.

The next month, her parents instead brought this suit on Doe’s behalf against Knox County. They alleged that the county’s refusal to grant Doe the requested accommodation—a classroom ban on eating and chewing for all students except those with medical needs—violated the ADA and Rehabilitation Act. Id., PageID 255, 259-60. They requested a permanent injunction that would require L&N to implement the accommodation for Doe. Id., PageID 260-61.

Knox County also described the accommodations that L&N had provided to Doe. Since her arrival at the school as a ninth grader, Doe has had a “504 plan” (a plan under § 504 of the Rehabilitation Act). Odom Decl., R.44-2, PageID 451. Among other things, this plan gives Doe preferential seating near the teacher and allows her to wear noise-cancelling headphones. Id. It also gives her additional time to complete assignments and permits her to take tests in isolation. Id. Under a “`break’ system” that administrators developed with Doe’s parents, moreover, she could signal to a teacher that she needed a break of a specified length and obtain a new seat on her return to class. Id. But administrators allege that Doe stopped using this “collaborative” system and started leaving class without attempting to return. Id., PageID 452.

According to L&N’s principal, Doe’s teachers have all requested that her peers limit eating in class. Allen Decl., R.44-1, PageID 446. But Doe responds that her case has now attracted unwanted local attention. The Knox County mayor, a retired professional wrestler who competed under the moniker “Kane,” has described the suit as “gum gate” on Twitter. Br., R.15, PageID 168. (The mayor has no affiliation with the Knox County Board of Education.) According to her father, this attention has caused some cruel students to target Doe by making noises that trigger her condition. K.M. Decl., R.31-1, PageID 359.


Issues Presented

  1. Does this case require exhaustion under the IDEA?
  2. If, exhaustion is not required, should the court grant plaintiff’s request for a preliminary injunction?




Court’s Reasoning That the Case Does Not Require Exhaustion under the IDEA Because a FAPE Is Not Involved


  1. Fry, which we discussed here, is the first thing that has to be looked at.
  2. In Fry, the Supreme Court identified the relief that the IDEA makes available to students. It then held that the IDEA allows parent to seek relief for only one injury, which is the denial of a free appropriate public education (FAPE). The Supreme Court added that parent need not exhaust IDEA if they seek some other benefit that an IDEA hearing officer could not provide.
  3. In Fry, the Supreme Court adopted a complaint centered approach. It held that the key was figuring out whether a free appropriate public education was the crux of the complaint. If it was, exhaustion was required. If it was not, exhaustion was not required.
  4. Fry posed three questions. First, could a student’s parents have sought the relief if the challenged conduct had arisen outside the school in say a public theater or library? Second, could a teacher or guest at the school rather than the student have requested the same relief? If the answer was no to those questions, the parents were likely seeking a free appropriate public education. However if the answer was yes to those questions, a student was likely not seeking a free appropriate public education. Another factor the Supreme Court considered was whether the parents were using IDEA processes before bringing suit. If they were, that would suggest that they believed they were seeking an IDEA related remedy.
  5. Although Fry directed courts to ask whether the key to the complaint was whether a free appropriate public education was the sought for relief, it didn’t offer much input into what the term of art meant.
  6. The IDEA text and circuit precedent makes it clear what is required when parents are seeking relief that is available under the IDEA only. In that situation, parents are seeking relief under IDEA only if a child needs an instructional change and not just a noninstructional accommodation to some school rule or policy.
  7. IDEA requires States to give a free appropriate public education only to students with disabilities. IDEA connects both phrases to the term, “special education.” A free appropriate public education is defined as special education and related services provided in conformity with a child’s IEP. It defines a child with a disability as a child with certain impairments who by reason thereof needs special education and related services. In other words, free appropriate public education and special education, for a child with a disability is a student needing that type of education.
  8. The definition of special education in the IDEA shows that a request for a free appropriate public education is a request for uniquely tailored teaching. Special education under IDEA means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and other institutions, in other settings, and instruction in physical education.
  9. To request a free appropriate public education, parents must seek instruction that is specially designed. That is, they have to seek relief about the action of instructing or teaching their child or imparting of knowledge or skill to him or her. That requested teaching must also exceed what is usual or customary. An IDEA regulation puts it as parents must seek a change to the content, methodology, or delivery of the teaching to address the unique needs of a child ensure access of the child to the general curriculum.
  10. The definition of related services confirms that a child must need teaching changes in order to receive services. The phrase includes transportation and developmental, corrective, and other supportive services that may be required to assist a child with a disability to benefit from special education. It is therefore expanding the available relief the cover items required for a child to obtain specially designed instruction.
  11. IDEA does not allow parents to seek the services independent of specially designed instruction. In other words, services cannot be related to special education if the child does not need special education. As an IDEA regulation explains, a child does not qualify for the benefits of the IDEA if the child only needs noninstructional accommodations.
  12. A child may qualify for relief under the ADA or the Rehabilitation Act and not IDEA because the ADA and the Rehabilitation Act cover children who need regular and not just special education.
  13. Circuit court cases agree with the general rule that the IDEA requires instructional changes. Courts also require administrative exhaustion when parents are seeking a change to the delivery or methodology of their child’s instruction.
  14. Courts also generally hold that parent need not exhaust claims challenging noninstructional harms, such as a service animal.
  15. The court saved the question of whether the IDEA exhaustion rule is jurisdictional for another time.
  16. Plaintiff did not need to proceed through the IDEA administrative processes because there complaint did not request any instructional changes. Instead, they asked for a ban on eating and chewing in all of her academic classrooms, which has nothing to do with an instructional change.
  17. A ban on eating and chewing is neither special education nor a related service. Also, no ordinary speaker would describe such a ban as specially designed instruction either because there is nothing innately instructional about the prohibition. That is, such a prohibition would not change the content, methodology, or delivery of the instruction given to the plaintiff. Instead, this change would be more naturally described as a change to the physical school environment much in the way a ramp would change the environment for a person in a wheelchair or a peanut prohibition would change the environment for student allergic to peanuts.
  18. Limits on eating and chewing gum in a classroom could not be typically called a service. Even so, it doesn’t matter whether a service is involved at all because the plaintiff does not allege any facts suggesting that their child needed other specially designed instruction. In fact, the complaint alleged that she excelled at her educational endeavors when the problematic sounds have not pervaded her classroom. Allegations were also made that she had no problem with the content of the instruction or the way that teachers deliver it. So, the plaintiff is requesting the accommodation to gain access to regular education and not to special education.
  19. The request made by the plaintiff looks nothing like the typical kind of request that courts have found falling within the IDEA, such as a request for a one-on-one aide or for a teacher to integrate a child’s iPad into the teacher’s lesson plans.
  20. Fry’s two hypothetical questions also support this conclusion. For one, plaintiff could have tried to seek an eating and chewing ban in many other places beside the school. Also, other people could have requested the same type of ban sought by plaintiff’s parents in this case.
  21. Plaintiff’s parents have never sought an IEP for plaintiff under the IDEA. Instead, she has only been provided with a §504 plan under the Rehabilitation Act. In fact, litigation already occurred specifically making it clear that plaintiff was not eligible for IDEA services.
  22. Trying to apply the Fry questions does not mean confusing the challenged conduct with the resulting injury. That approach was specifically rejected by Fry.
  23. Since plaintiff seeks no instructional changes, plaintiff did not need to exhaust IDEA processes.




Court’s Reasoning That Plaintiff’s Request for Preliminary Injunction Must Be Referred to the Lower Court.



  1. The DOJ has issued regulations, 28 C.F.R. §35.130(c)(7)(i), that a public entity has to make reasonable modifications to policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modification fundamentally alters the nature of the service, program or activity. So, plaintiff’s parents must show that a switch from a policy allowing food in the classroom to a policy prohibiting food qualifies as a moderate rather than a significant change in the relevant policy. They also must deal with the proposition put forward by the school that a change like that requires the college -like school to alter its entire (i.e. a fundamental alteration), because it does not have a designated cafeteria.
  2. In Rehabilitation Act cases, courts have held that parents must show not just that their preferred accommodation was reasonable but also that the provided the accommodation was unreasonable. Further, the law suggests that plaintiff’s parents would have to show that the §504 plan provided to her by the school district was unreasonable giving due regards to the professional judgment of school administrators.



Knox County Board Takeaways


  1. I have always thought that Fry was very difficult to apply in the real world.
  2. If Doe prevails, by definition it would be very unlikely that a person in a 504 plan would ever have to exhaust administrative remedies because 504 plans do not involve specially designed instruction.
  3. Depending upon the Supreme Court decision in Perez, which is the other blog entry for today, the issue of instructional changes may become a very big deal indeed.
  4. Doe means that school districts need to have separate procedures for violation of an IDEA FAPE v. a Rehabilitation Act FAPE.
  5. The court gets it wrong in its preliminary injunction discussion with respect to what is a reasonable modification. A reasonable modification has nothing to do with it being moderate. Instead, the question is whether it constitutes an undue burden or a fundamental alteration, which is a completely different question. One can even argue that a significant change is a lower bar than a fundamental alteration.
  6. Professional judgment of school administrators is a thing. That is, courts will respect the judgment of school administrators providing the school goes through its proper paces, such as we discussed here and what happens when they don’t, here.
  7. This case will also ask plaintiff attorneys to carefully consider whether their client’s situation can be handled entirely under a 504 plan because under this case, the odds would be very high that exhaustion of administrative remedies would not be required for a student only in a 504 plan.
  8. This case may also force plaintiffs and their attorneys to consider whether they want to resist any effort by the school to force their student into the IDEA system rather than the 504 system.