Before getting started on the blog entry of the week, I wanted to give everyone a heads up as to the blogging schedule for the rest of the calendar year. My daughter comes home for a three week break on December 13, so we have this blog this week. I will also have a blog next week as well. After that, it is a bit of the wildcard as to whether I will have any other blogs up before the end of the calendar year. The blog entries this week are substantive. I need to have one more blog this calendar year discussing the most popular Understanding the ADA blog entries of the year. I may or may not have time for another substantive blog.
Turning to the blog entry for the week, it involves two different cases, both published decisions, involving the decision tree after Fry, which we discussed here, and Perez, which we discussed here. How do you read the combination of cases with respect to the decision tree the decisions create? For example, you might start with the proposition that compensatory damages is step one. Step two is analyzing whether a free appropriate public education per IDEA exists. Step three is deciding if a free appropriate public education exists under IDEA, then game over for compensatory damages until IDEA exhaustion occurs.
Or does it work another way. That is: 1) the court assesses whether a free appropriate public education under IDEA is involved or whether it is based upon disability discrimination; 2) if the complaint does not concern the denial of a free appropriate public education under IDEA, then the plaintiff does not need to go through the IDEA administrative exhaustion processes; 3) if the complaint is predicated on denial of a free appropriate public education under IDEA, then the court must look to what relief is being sought; 4) if the relief sought is not one that the IDEA provides, such as compensatory damages, then the plaintiff need not go through the IDEA administrative exhaustion processes; and 5) if the relief is sought is of the type that the IDEA offers, then the plaintiff must fully exhaust the administrative processes under IDEA. From my reading of Fry and Perez, you can argue the decision tree could go either of these two decision trees I mention. The answer makes a great deal of difference in terms of the possible outcomes.
There is also a third possibility that Perez essentially overruled Fry. That is, a compensatory damages claim automatically means you don’t have to exhaust the IDEA administrative processes. Yet another possibility is that if a free appropriate public education is involved, ADA claims are precluded altogether.
We now have two published decisions from two different circuits taking two different approaches. The two cases are: Powell v. School Board of Volusia County, Florida, a published 11th Circuit decision decided on November 13, 2023, here; and Lartigue v. Northside Independent School District, a published decision from the Fifth Circuit decided November 16, 2023, here. As usual, the blog entry you divided into categories and they are: Powell facts; Perez provided the simple answer; Powell thoughts/takeaways; Lartigue facts; Lartigue’s reasoning that administrative exhaustion is not required; Judge Smith’s dissenting opinion; Lartigue’s thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Plaintiffs amended complaint alleged claims under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and Title II of the ADA, and sought injunctive relief, compensatory damages, and punitive damages. Specifically, Appellants alleged that the School Board routinely excluded students with disabilities from classroom instruction through the use of informal tactics, such as sending children home early, instructing parents to keep their children home even if they were not suspended, and otherwise removing them from the classroom and, thus, depriving them of an education. Appellants also alleged instances when the School Board would improperly suspend students or institute other formal disciplinary actions, as well as initiate procedures under the Baker Act, Fla. Stat. § 394.459 (2023). Appellants’ overall contention is that the School Board systemically discriminated against students with disabilities by “relying on overtly punitive disciplinary tactics and law enforcement to address behaviors that are known, or should be known, manifestations of the students’ disabilities.”
Perez Provides the Simple Answer
- In light of Perez, a suit premised on the past denial of a free appropriate public education can still go forward without exhausting the IDEA’s administrative processes if the remedy the plaintiff seeks is not one IDEA provides.
- I am struggling with the Fifth Circuit opinion in Powell because it seems that it essentially argues that Perez overruled Fry. I don’t read the two decisions that way. Simply alleging compensatory damages is not enough to get around the IDEA exhaustion requirements, which seems to be what Powell is suggesting. A better reading of Fry and Perez would be one of the two decision trees I mentioned at the top of the blog entry rather than this approach.
Lartigue argues that, throughout her years at the Academy, the District failed to properly accommodate her hearing impairment as required by her IEP. For example, Lartigue alleges that the District repeatedly failed to provide closed-captioning for films and videos shown in class. Lartigue also alleges that “the District failed to ensure that two interpreters were available at all times, such that one interpreter would be available if the other needed to take a break.” Moreover, Lartigue claims that the “counseling services” she requested were out in the open hallways of the high school, thereby depriving her of the kind of confidentiality and privacy required for counseling to be effective. Lastly, Lartigue argues that the District’s failure to timely provide her with a Communication Access Realtime Translation Services for a live debate competition left her unable to fully participate in the extracurricular activity. Taken together, Lartigue claims that “the District’s refusals to accommodate [her] hearing impairment left her isolated from her peers and unable to meaningfully participate in various educational programs and activities.” Lartigue left the Academy in March 2019 to be homeschooled.
After the case was severed from the class action, and consistent with the IDEA’s exhaustion requirement under § 1415(l), Lartigue and her parents filed a complaint with the Texas Education Agency on May 16, 2019, contending that the District had failed to provide a FAPE as outlined in Lartigue’s IEP. Following an administrative hearing, the hearing officer concluded that the District satisfied the IDEA’s requirements and provided Lartigue with a FAPE. After these administrative proceedings concluded, the district court evaluating Lartigue’s claims found that she had satisfied IDEA’s exhaustion requirement under § 1415(l).
Before the district court, Lartigue amended her complaint twice, revised her requested remedies, and changed the caption to sue under her name once she reached the age of majority. As amended, Lartigue alleged violations of: (1) Title II of the ADA; (2) Section 504 of the Rehabilitation Act; and (3) the United States and Texas Constitutions. Contrary to the class action suit, Lartigue did not include an IDEA claim. Furthermore, Lartigue sought compensatory damages, a form of relief not available under the IDEA.31
Court’s Reasoning That Administrative Exhaustion Not Required
- The current state of the law is as follows: in a suit against a public school for alleged violations of the ADA or other similar anti-discrimination statutes, the court should first assess whether the gravamen of the complaint concerns the denial of a FAPE or, instead, is based on disability discrimination. If the complaint does not concern the denial of a FAPE, then the plaintiff need not got through the IDEA’s administrative hurdles. On the other hand, if the complaint is predicated on a FAPE denial, then the court must then ask what relief is sought. If the relief sought is not one that the IDEA can provide (such as compensatory damages), then, again, the plaintiff need not go through the IDEA’s administrative hurdles. But if the relief sought is of the type that the IDEA offers, then the plaintiff must fully exhaust the administrative processes as required by § 1415(l).
- The district court started off on the right path but ultimately reached the incorrect legal conclusion. First, in its initial order denying summary judgment, the district court correctly found that Lartigue had “exhausted her administrative remedies” under § 1415(l) of the IDEA by pursuing her claim before a Special Education Hearing Officer for the State of Texas. Second, the district court was correct to find that the gravamen of Lartigue’s complaint was the denial of a FAPE. Neither of the parties disputed this finding. Third, the court properly understood that Lartigue’s federal claims were not precluded by the TEA’s findings because the legal standards applicable in an IDEA due process hearing and those that apply in a courtroom for a “failure to accommodate” claim under the ADA were different.
- Under Fry, finding that the gravamen of an ADA complaint is the denial of a FAPE only leads to the conclusion that a plaintiff must exhaust the state’s administrative remedies before filing suit in federal court. Here, because the district court properly found that the gravamen of the complaint was the denial of a FAPE, Lartigue was only required to exhaust the state’s administrative remedies before filing suit in the district court. And the parties agreed to let pre-filed that Lartigue did just that. The district court should have stopped there, after finding that Lartigue had met the exhaustion requirement of § 1415(l). Instead, the district court stretched the bounds of Fry to bar Lartigue’s claim altogether.
- Plaintiff evades no statutory limitation by filing her ADA complaint. The only relevant statutory limitation is the exhaustion requirement, which plaintiff fulfilled. That is, plaintiff is not attempting to resurrect or abandon an IDEA claim through artful pleading-in fact, her amended complaint completely abandon that claim altogether-she merely is exercising her right under the ADA to pursue a failure to accommodate claim against the school district.
- Perez clearly allows the claim to proceed without going through the IDEA exhaustion requirements because compensatory damages are being sought, which is not a possibility under IDEA.
- The collateral estoppel doctrine doesn’t apply for two different reasons. First, the legal standards between the due process hearing and an ADA claim are completely different and have completely different purposes. Second, whether disability discrimination occurred is not considered in the due process hearing.
- Like the plaintiff in Perez, this plaintiff is seeking compensatory damages for the harm suffered during her time at the school and is no longer seeking forward-looking relief.
- In short: the issues involved are different; congressionally mandated administrative proceedings are inherently non-preclusive; and plaintiff seeks a different form of relief than what the IDEA offers (compensatory damages rather than compensatory education).
- On remand, the district court may consider the issue if need be as to whether title II of the ADA precludes emotional distress damages as a result of Cummings v. Premier Rehab Keller, which we discussed here.
Judge Smith’s Dissenting Opinion
- The dissenting judge believed that collateral estoppel should have applied as the theories of liability making up the ADA suit rests on questions of fact already having been decided in the IDEA administrative hearing.
- To prevent a collateral estoppel finding, plaintiff should have alleged Rehabilitation Act claims but did not do so.
- I had trouble following the dissenting opinion. In particular, it says that collateral estoppel applies where: 1) the identical issue was previously adjudicated; 2) the issue was actually litigated; and 3) the previous determination was necessary to the decision. My problem is that the identical issue was not previously adjudicated and the issue was not actually litigated either.
- Powell and Lartigue present two different decision trees. Powell says so long as you allege compensatory damages you do not need to exhaust IDEA administrative remedies. That theory goes too far as it would essentially circumvent IDEA altogether and overrule Fry. The second decision tree, Lartrigue, allows for circumvention of the IDEA exhaustion process if the relief sought is not one provided by the IDEA after first figuring out whether a free appropriate public education is involved in the first place. If a free appropriate public education is involved in the first place, then IDEA exhaustion must be done first prior to filing any ADA claim. The Lartrigue court rejected the idea that ADA claims can be precluded altogether, our fourth decision tree possibility and the district court approach in this case, by IDEA claims if a free appropriate public education is involved.
- It will be interesting to follow this case to see how the lower court deals with whether compensatory damages are available under title II of the ADA.
- It is not at all a given that title II of the ADA, a civil rights law and not spending clause legislation, precludes emotional distress damages. The Supreme Court when it heard oral argument in Perez made it clear that this issue is very much still to be decided, as we mentioned here.
- Both decisions are published decisions.