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IDEA Exhaustion Ruling: Parents must exhaust IDEA administrative remedies before suing a district under the ADA if the crux of the complaint is a denial of FAPE.

June 14, 2021

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By: Lily Crespo Esq.

Quick takeaway: When contending that a parent’s lawsuit concerns FAPE and therefore requires that she first complete the administrative hearing process under the IDEA, attorneys for districts should pay close attention to the language in the complaint. Although not dispositive, any IDEA terminology used in the complaint, or citations to the IDEA can help show the essence of the complaint concerns FAPE. Both those factors played a role here, where the parent’s ADA complaint mentioned violations of FAPE requirements and child find and referenced the IDEA’s child find provisions.

The court will look at the substance of the complaint: The mother of an elementary school student with an anxiety disorder will have to either amend her complaint or pursue IDEA due process hearing procedures before she can proceed with her lawsuit against a district alleging discrimination against her daughter in violation of Title II of the ADA. The U.S. District Court, District of Oregon held that because the substance of the parent’s complaint concerned FAPE, the parent was required to exhaust her administrative remedies under the IDEA before bringing her claims in federal court.

What led up to the ruling: A mother’s claims that a district failed to address her daughter’s overwhelming fear of school were, in essence, about a denial of FAPE, a District Court held. Relying largely on the way the parent’s attorneys worded the allegations, the court held that the parent’s claims that the district discriminated against her daughter under the ADA with respect to the child’s anxiety disorder were subject to the IDEA’s exhaustion requirements. The District Court explained that a parent must exhaust her IDEA administrative remedies before suing a district under the ADA if the crux of the complaint is a denial of FAPE. Here, the court observed, the mother’s complaint, “almost verbatim,” alleged a denial of FAPE. The parent contended, for example, that the district failed to provide the parents notice concerning the provision of FAPE and excluded the child from school “for a free public education,” the court pointed out. “Many of the [parent’s] other allegations involve the School District failing to adhere to provisions of the IDEA designed to ensure that students with a disability receive a FAPE,” U.S. District Judge Michael H. Simon wrote. For example, the parent, citing the IDEA’s child find requirements, asserted that the district failed to formally assess the student to identify her as a student with a disability. Noting that the parent couldn’t have asserted the same allegations against a public facility that wasn’t a school and couldn’t have brought the same claims against the district as an adult, the court held the crux of the complaint concerned FAPE and thus required exhaustion. Finally, Judge Simon explained that the parent failed to allege that she was entitled to have the court excuse her failure to exhaust. The court granted the district’s request to dismiss the claims.

The case is: Kim ex rel. EK v. Beaverton Sch. Dist. 48J, U.S. District Court, Oregon. 05/28/21

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.

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