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9th Circuit limits Fry rule to claims for denial of FAPE as defined by IDEA

October 12, 2020


By: Lily Crespo Esq.

What happened? On September 23, 2020, the Ninth Circuit Court of Appeals in McIntyre v. Eugene Sch. Dist. 4J ruled an Oregon district could not use the IDEA’s exhaustion requirement to shield itself from Section 504 and ADA claims arising out of its alleged failure to implement the Section 504 plan of a high schooler with ADD and Addison’s disease. Noting the student did not allege a denial of fair and appropriate education, (FAPE), as defined by the IDEA, the 9th Circuit reversed the District Court’s dismissal of the student’s complaint and remanded the case for further proceedings.

What is the Fry Rule? In 2017, the US. Supreme Court ruled that just because a school district’s denial of a particular disability-related accommodation has some connection to a student’s education doesn’t mean that the parents must exhaust their administrative remedies before suing the district under Section 504 or the ADA. The U.S. Supreme Court held in a unanimous decision that the IDEA’s exhaustion requirement only applies when the essence of the complaint is a denial of FAPE. (Fry v. Napoleon Cmty. Schs., 69 IDELR 116 (U.S. 2017)

**Quick refresher on the difference between services provided under Section 504 versus the IDEA**

Section 504: Services provided usually go to access issues and testing accommodations. (Seating at front of class, more time on tests, quiet spaces to test ect)

IDEA: More about changing the taught content to reflect the specific needs of the student.

What was different about this case? Under guidance from the US. Supreme Court in Fry, courts have generally found that if there has been a denial of FAPE under the IDEA, then exhaustion remedies should be required of plaintiffs. The difference in this case lay in the type of services that were being provided to the student. Because those accommodations did not qualify as “special education” or “related services” under the IDEA, the Ninth Circuit panel found she did not have to exhaust her administrative remedies.

As the court stated:

“to require exhaustion in this context would expand the exhaustion requirement far beyond what Fry permits. Exhaustion should not be required merely because the plaintiff’s complaint “has some articulable connection to the education of a child with a disability” or else “falls within the general ‘field’ of educating disabled students.” Id. at 752 n.3, 753. Instead, the proper inquiry looks to the substance of the IDEA’s FAPE requirement, which the district court failed to do.”

What did the court decline to do? In light of their disposition, the court saw no need to address McIntyre’s argument for a bright line rule that exhaustion is never required when a student is ineligible for services under the IDEA. This case fell out this way because of the specific analysis the court applied to types of services that were provided to the student. This case further develops Fry but does leave up to future cases the task of drawing a line between what can be considered services under the IDEA versus services under Section 504.

The court clarified:

“We do not suggest that a student’s IEP cannot provide testing accommodations or an emergency protocol as a “related service” to ensure she “benefits from” special education. The point here is only that—absent special education—these accommodations alone do not meet the statute’s definition of a “related service” to warrant exhaustion.”

What are the implications of this ruling for Montana educators? Most Circuit Courts have interpreted Fry v. Napoleon Community Schools, 69 IDELR 116 (U.S. 2017), as requiring students to exhaust any non-IDEA claims alleging a denial of FAPE. This decision is the first to suggest that the Fry rule only applies when a student seeks relief for a denial of FAPE as defined by the IDEA. Here, the former student claimed the district failed to implement the testing accommodations and health protocol in her Section 504 plan. Because those accommodations did not qualify as “special education” or “related services” under the IDEA, she did not have to exhaust her administrative remedies.

The upshot? Administrators and legal counsel will have to pay special attention to cases where a student might fall outside the exhaustion requirements imposed by the IDEA.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

Kaleva Law

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