Amicus Curiae Brief — Miguel Luna Perez, Petitioner v. Sturgis Public Schools, et al.
Supreme Court briefJan 12, 2022
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No. 21-887
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------MIGUEL LUNA PEREZ,
Petitioner,
v.
STURGIS PUBLIC SCHOOLS; STURGIS
PUBLIC SCHOOLS BOARD OF EDUCATION,
Respondents.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE
23 LAW PROFESSORS
IN SUPPORT OF PETITIONER
---------------------------------♦--------------------------------LESLIE SALZMAN
Counsel of Record
REBEKAH DILLER
CARDOZO BET TZEDEK
LEGAL SERVICES
BENJAMIN N. CARDOZO
SCHOOL OF LAW
55 Fifth Avenue, 11th Floor
New York, NY 10003
646-592-6570
Salzman@yu.edu
Counsel for Amici Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
iii
INTEREST OF AMICI CURIAE .........................
1
SUMMARY OF ARGUMENT ..............................
1
ARGUMENT ........................................................
5
I.
II.
By Extending Ross to Bar Longstanding
Exceptions to the IDEA Exhaustion Requirement, the Sixth Circuit Distorts Exhaustion Doctrine and Creates a Circuit
Split ...........................................................
5
A. The Sixth Circuit’s Decision Creates a
Circuit Split .........................................
5
B. The Sixth Circuit’s Misreading of Ross
Distorts Basic Principles of Statutory
Construction ........................................
7
The Sixth Circuit’s Decision Frustrates
the Goal of Promoting Voluntary Settlement and Is Not Justified by Any Purposes of Exhaustion ................................... 11
A. The IDEA is Structured to Resolve
Disputes Quickly in Order to Provide
Timely Special Education Services ..... 12
B. The Sixth Circuit’s Decision Undermines the Goal of this Court and Congress to Encourage Voluntary Dispute
Resolution ............................................ 14
ii
TABLE OF CONTENTS—Continued
Page
C. Requiring a Disabled Student to Have
a Hearing on Claims that Have Already Been Resolved Does Not Further the Purposes of Exhaustion ......... 16
III.
The Sixth Circuit’s Decision is Contrary to
Section 1415(l)’s Text ................................. 20
A. Section 1415(l) Should Be Read According to Its Plain Language ............. 20
B. The Arguments for Requiring Exhaustion Are Non-Textual, and Unsupportable After a Student Has Accepted an
IDEA Settlement ................................. 22
CONCLUSION..................................................... 26
APPENDIX: LIST OF AMICI .............................. 1a
iii
TABLE OF AUTHORITIES
Page
CASES
A.F. ex rel. Christine B. v. Espanola Pub. Sch.,
801 F.3d 1245 (10th Cir. 2015) ..................................6
Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399
(1988) .......................................................................10
Board of Educ. of Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. 176 (1982) ........................18
Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020)........20
Bowen v. City of New York, 476 U.S. 467 (1986) .... 10, 16
Carr v. Saul, 141 S. Ct. 1352 (2021) ..................... 11, 16
Carson v. American Brands, Inc., 450 U.S. 79
(1981) .......................................................................15
Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058
(10th Cir. 2002)........................................................23
D.A. ex rel. Latasha A. v. Houston Indep. Sch.
Dist., 629 F.3d 450 (5th Cir. 2010) ..........................18
D.D. ex rel. Ingram v. Los Angeles Unified Sch.
Dist., 18 F.4th 1043 (9th Cir. 2021)..................... 6, 21
Dorsey v. City of Detroit, 157 F. Supp. 2d 729
(E.D. Mich. 2001) .....................................................19
Doucette v. Georgetown Pub. Sch., 936 F.3d 16
(1st Cir. 2019) ...................................................... 6, 17
E.E. v. California, No. 21-cv-07585-SI, 2021 WL
5139660 (N.D. Cal. Nov. 4, 2021) ............................13
Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch.
Dist. RE-1, 137 S. Ct. 988 (2017) ............................12
iv
TABLE OF AUTHORITIES—Continued
Page
F.T.C. v. Actavis, Inc., 570 U.S. 136 (2013) ..................14
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230
(2009) .......................................................................12
Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743
(2017) ............................................................... passim
Fry v. Napoleon Cmty. Sch., 788 F.3d 622 (6th
Cir. 2015) .................................................................25
Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298
(9th Cir. 1992)..........................................................16
Honig v. Doe, 484 U.S. 305 (1988)......................... 2, 6, 9
K.M. ex rel. Bright v. Tustin Unified Sch. Dist.,
725 F.3d 1088 (9th Cir. 2013) ..................................18
Marek v. Chesny, 473 U.S. 1 (1985) ............................14
McDermott, Inc. v. AmClyde, 511 U.S. 202 (1994) .......14
McKart v. United States, 395 U.S. 185 (1969) ............23
McMillen v. New Caney Indep. Sch. Dist.,
939 F.3d 640 (5th Cir. 2019) .................. 21, 22, 23, 24
Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ...........9
Miraglia v. Bd. of Supervisors of the La. State
Museum, 901 F.3d 565 (5th Cir. 2018) ....................18
Montana Nat’l Bank of Billings v. Yellowstone
Cnty., 276 U.S. 499 (1928) .......................................10
Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775
(10th Cir. 2013).............................................. 6, 19, 24
Nieves–Marquez v. Puerto Rico, 353 F.3d 108 (1st
Cir. 2003) .................................................................18
v
TABLE OF AUTHORITIES—Continued
Page
Polera v. Board of Ed., 288 F.3d 478 (2d Cir.
2002) ........................................................................23
Ross v. Blake, 578 U.S. 632 (2016) ...................... passim
S.H. ex rel. Durrell v. Lower Merion Sch. Dist.,
729 F.3d 248 (3d Cir. 2013) .....................................18
School Comm. of Burlington v. Dept. of Educ. of
Mass., 471 U.S. 359 (1985) ......................................17
Smith v. Berryhill, 139 S. Ct. 1765 (2019) .................11
Smith v. Robinson, 468 U.S. 992 (1984) ............... 1, 8, 9
Union Pac. R.R. Co. v. Bd. of Cnty. Comm’rs, 247
U.S. 282 (1918) ........................................................10
W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) ...................6
Weinberger v. Salfi, 422 U.S. 749 (1975) .....................10
Winkelman v. Parma City Sch. Dist., 550 U.S.
516 (2007) ................................................................12
Witte v. Clark Cnty. Sch. Dist., 197 F.3d 1271
(9th Cir. 1999)............................................................6
STATUTES
20 U.S.C. § 1400(d)(1)(A) ............................................12
20 U.S.C. § 1401(9) ......................................................12
20 U.S.C. § 1412(a)(1) .................................................12
20 U.S.C. § 1415(f )(3)(A)(ii) ........................................19
20 U.S.C. § 1415(f )(3)(E) .............................................18
20 U.S.C. § 1415(l) ............................................... passim
vi
TABLE OF AUTHORITIES—Continued
Page
42 U.S.C. § 1997e(a) ......................................................8
42 U.S.C. § 12132 ........................................................18
Pub. L. No. 99-372, § 3, 100 Stat. 796 ...................... 1, 2
LEGISLATIVE MATERIALS
H.R. Rep. No. 99-296 (1985) .........................................9
S. Rep. No. 99-112 (1985) ..............................................9
OTHER AUTHORITIES
66 Am. Jur. 2d Release (2021) ....................................15
California Deskbook on Complex Civil Litigation Management (2021) .........................................15
Center for Appropriate Disp. Resol. in Special
Educ., IDEA Dispute Resolution Data Summary for: U.S. and Outlying Areas 2008–09 to
2018–19 (2020) ........................................................14
Mark C. Weber, A New Look at Section 504 and
the ADA in Special Education Cases, 16 Tex.
J. C.L. & C.R. 1 (2010) .............................................25
National Ctr. on Birth Defects and Developmental Disabilities, Centers for Disease Control
and Prevention, Why Act Early if You’re Concerned about Development? (Apr. 19, 2021) ............12
vii
TABLE OF AUTHORITIES—Continued
Page
Susan R. Easterbrooks et al., Ignoring Free, Appropriate, Public Education, a Costly Mistake:
The Case of F.M. & L.G. versus Barbour
County, 9 J. Deaf Stud. & Deaf Educ. 219
(2004) .......................................................................13
Theodore Eisenberg & Charlotte Lanvers, What
is the Settlement Rate and Why Should We
Care?, 6 J. Empirical Legal Stud. 111 (2009) .... 14, 15
U. S. Gov’t Accountability Off., GAO-20-22, Special Education: IDEA Dispute Resolution Activity in Selected States Varied Based on
School Districts’ Characteristics (2019) ........... 13, 22
Wyatte C. Hall, What You Don’t Know Can Hurt
You: The Risk of Language Deprivation by Impairing Sign Language Development in Deaf
Children, 21 Maternal & Child Health J. 961
(2017) .......................................................................13
TREATISES
Moore’s Federal Practice–Civil (2021) .......................15
R. Pierce, Administrative Law Treatise (5th ed.
2010) ..........................................................................7
1
INTEREST OF AMICI CURIAE1
Amici curiae (listed in the Appendix) are professors who research, write, and teach in the fields of
disability law, special education, civil rights, and administrative law. They have an interest in the proper
application of the statutory schemes that protect disabled students’ rights as well as in the appropriate
scope of exhaustion doctrine. Amici also have an interest in preserving the ability of parties to voluntarily
settle disputes, and particularly so in the context of
legislative schemes predicated on cooperation between
parties.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
This case has serious implications for the functioning of two intersecting statutory schemes designed
to protect the rights of disabled children in school settings—the Individuals with Disabilities Education Act
(IDEA) and the Americans with Disabilities Act (ADA).
After this Court’s decision in Smith v. Robinson, 468
U.S. 992 (1984), which ruled that all challenges related
to the adequacy of disabled students’ special education had to be channeled through the IDEA, Congress
moved swiftly to reject that holding by enacting 20
U.S.C. § 1415(l). See Pub. L. No. 99-372, § 3, 100 Stat.
1
No counsel for any party authored this brief in whole or in
part. No person or entity, other than Amici, made a monetary contribution intended to fund the preparation and submission of this
brief. All parties have consented to the filing of this brief, and all
parties received timely notice of Amici’s intent to file this brief.
2
796, 797. Section 1415(l) protects disabled students’
rights to bring independent claims to address schoolbased discrimination and other civil rights violations
in addition to IDEA claims challenging the adequacy
of special education. Congress appended a “carefully
defined” exhaustion provision, Fry v. Napoleon Cmty.
Sch., 137 S. Ct. 743, 746 (2017), requiring exhaustion,
but only when plaintiffs bring other federal claims
“seeking relief that is also available” under the IDEA.
20 U.S.C. § 1415(l).
In a sweeping decision that places it at odds with
every other circuit, the Sixth Circuit now has held
that the standard futility exception to exhaustion
categorically does not apply to Section 1415(l). To support its conclusion, the Sixth Circuit takes out of context one statement from Ross v. Blake, 578 U.S. 632,
639 (2016)—which construed a wholly different, mandatory exhaustion provision from the Prison Litigation
Reform Act (PLRA)—and makes it the departure point
for a fundamental revision of exhaustion doctrine. In
deciding that the longstanding futility exception does
not apply to Section 1415(l), the Sixth Circuit ignores
Congress’s language, Section 1415(l)’s unique enactment history, and this Court’s recognition of a futility
exception in Honig v. Doe, 484 U.S. 305, 327 (1988).
And the Sixth Circuit reached this decision in circumstances in which the plaintiff, prior to bringing his
federal ADA action, had already pursued the administrative process to the point of obtaining all possible
relief on his entitlement to a free appropriate public
education (FAPE) under the IDEA and had had his
3
ADA claim dismissed by the administrative hearing
officer. Holding a hearing when there is nothing left to
dispute and no relief to grant is the very definition of
an exercise in futility. For this reason, four other circuits specifically have recognized that exhaustion
would be futile when plaintiffs have already obtained
all relief from the administrative process. This Court
should reject this deviation from accepted administrative law doctrine not just for Section 1415(l), but also
to prevent the erroneous decision from spilling over
into other contexts.
The Sixth Circuit’s interpretation of Section
1415(l) undermines an IDEA dispute resolution system designed to foster collaboration between parents
and schools and to encourage resolution of disputes as
early as possible in the administrative process so that
students promptly receive needed services. The decision gives a disabled child an overly circumscribed
choice: 1) accept a satisfactory settlement of a special
education dispute to get services promptly but give up
any non-IDEA claim for compensatory damages, despite significant past harms; or 2) relinquish the opportunity to quickly obtain vital services, pursue a costly
administrative hearing that can provide no greater relief than was already offered, but preserve the nonIDEA damage claim. By drastically limiting students’
remedial choices, the decision risks unnecessary harm
to disabled students and conflicts with the IDEA’s goal
of encouraging swift resolution of educational complaints.
4
Finally, the Sixth Circuit’s non-textual reading of
Section 1415(l) to require exhaustion when the IDEA
hearing officer cannot provide the monetary relief
sought departs from the well-recognized principle of
reading a statute according to its terms. Once disabled
students have satisfactorily settled FAPE claims with
the school district, they are no longer “seeking relief
available under [the IDEA]” and should have no further obligation to exhaust under Section 1415(l)’s plain
language. This Court’s Fry decision has not ended the
lower court confusion over the scope of Section 1415(l),
especially when students have non-IDEA claims that
overlap with IDEA claims. Further clarification is
needed to preserve those rights Congress explicitly
preserved in Section 1415(l).
Both questions presented in the petition warrant
review. Whether the Court addresses the issue as the
proper application of the well-established futility exception or as the proper interpretation of a built-in
textual exception to Section 1415(l)’s exhaustion requirement, its resolution is of exceptional importance.
This Court’s intervention is needed to maintain the
proper balance of authority between agencies and
courts and to protect the ability of disabled students to
settle IDEA claims without forfeiting other recognized
rights.
---------------------------------♦---------------------------------
5
ARGUMENT
By Extending Ross to Bar Longstanding
Exceptions to the IDEA Exhaustion Requirement, the Sixth Circuit Distorts Exhaustion Doctrine and Creates a Circuit
Split
I.
The Sixth Circuit misinterprets Ross to bar all
standard administrative law exhaustion exceptions
unless they are specifically delineated in the statutory
text. See Pet. App. 10a (“Section 1415(l) does not come
with a “futility” exception, and the Supreme Court has
instructed us not to create exceptions to statutory exhaustion requirements.”) (citing Ross). By taking Ross
out of context, the Sixth Circuit acts contrary to Section 1415(l)’s particular language and enactment history, and deviates from decisions in every other circuit,
which have recognized exceptions such as futility in
the IDEA context. Amici agree with Petitioner that
this Court should address the circuit split and clarify
that Section 1415(l) has a futility exception that applies in these circumstances. See Pet. 14–30.
A. The Sixth Circuit’s Decision Creates a
Circuit Split
Three decades ago, this Court recognized that
under the IDEA,2 “parents may bypass the administrative process for judicial review where exhaustion
2
The statute’s name has changed since its original enactment as the Education of the Handicapped Act. This brief refers
to all versions as the IDEA.
6
would be futile or inadequate.” Honig, 484 U.S. at 327.
Since then, both before and after Ross, every other
circuit that has addressed the question has decided
that IDEA exhaustion is not required when it would be
futile or inadequate. See Pet. App. 29a-30a, 32a-33a
(Stranch, J., dissenting) (collecting cases); see also A.F.
ex rel. Christine B. v. Espanola Pub. Sch., 801 F.3d
1245, 1249 (10th Cir. 2015) (recognizing, in decision authored by then-judge Gorsuch, the continued existence
of futility exception). Four circuits have also correctly
concluded that IDEA exhaustion would be futile once
the student has obtained IDEA relief through a settlement with the district, as Miguel Luna Perez (“Perez”)
did here. See Doucette v. Georgetown Pub. Sch., 936
F.3d 16, 33 (1st Cir. 2019); Muskrat v. Deer Creek Pub.
Sch., 715 F.3d 775, 786 (10th Cir. 2013); Witte v. Clark
Cnty. Sch. Dist., 197 F.3d 1271, 1275–76 (9th Cir. 1999),
overruled on other grounds by Payne v. Peninsula Sch.
Dist., 653 F.3d 863 (9th Cir. 2011) (en banc), cert. denied, 565 U.S. 1196 (2012); W.B. v. Matula, 67 F.3d
484, 490 (3d Cir. 1995), abrogated on other grounds by
A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 799 (3d Cir.
2007) (en banc).3
3
See also D.D. ex rel. Ingram v. Los Angeles Unified Sch.
Dist., 18 F.4th 1043, 1058 (9th Cir. 2021) (en banc) (also suggesting that where student has obtained all FAPE relief available in
IDEA proceedings, exhaustion may well be futile).
7
B. The Sixth Circuit’s Misreading of Ross
Distorts Basic Principles of Statutory
Construction
This Court’s guidance is needed to ensure that
Ross’s specific holding rejecting a special circumstances exception to the PLRA’s exhaustion requirement is not misconstrued as a blanket prohibition
against standard administrative law exceptions in all
statutory exhaustion contexts, as the Sixth Circuit erroneously held. Pet. App. 10a. Such an exaggerated
reading of Ross conflicts with the Court’s recognition
that “Congress sets the rules,” and that statutory language and enactment history determine whether an
exhaustion provision is mandatory or permissive. Ross,
578 U.S. at 638–42. Ross concluded that the PLRA’s
“mandatory exhaustion [regime],” designed to constrict the ability of people in prison to bring lawsuits,
foreclosed judicial discretion to graft an unwritten
“special circumstances” exception onto its text. Id. at
639–42. Contrary to the Sixth Circuit decision, Ross
never says “only ‘judge-made exhaustion doctrines’ ”
permit exceptions. Pet. App. 10a (emphasis added). Rather, Ross specifically noted that when analyzing a
statutory exhaustion provision with a different “text
and history,” judges have greater “leeway to create . . .
or to incorporate standard administrative-law exceptions.” Ross, 578 U.S. at 642 n.2 (citing 2 R. Pierce, Administrative Law Treatise § 15.3, p. 1245 (5th ed.
2010)). Here, where Section 1415(l) uses more permissive language within a provision specifically enacted
to expand students’ rights to bring non-IDEA claims
8
after Smith curtailed those rights, see Fry, 137 S. Ct.
at 755, standard administrative law exceptions should
apply.
Section 1415(l)’s text is much more permissive
than the PLRA’s. The PLRA provides that “[n]o action
shall be brought with respect to prison conditions . . .
until such administrative remedies as are available
are exhausted,” 42 U.S.C. § 1997e(a) (emphasis added).
In contrast, Section 1415(l) declares that “[n]othing in
[the IDEA] should be construed to restrict or limit the
rights, procedures, and remedies available under . . .
Federal laws protecting the rights of children with disabilities. . . .” However, for those civil actions “seeking
relief that is also available under [the IDEA],” Section
1415(l) requires that IDEA procedures shall be exhausted. 20 U.S.C. § 1415(l). Fry distinguished Section
1415(l)’s language from that of “a stricter exhaustion
statute” that requires exhaustion prior to a lawsuit
that “ ‘could have sought’ relief available under the
IDEA (or, what is much the same, whether any remedies ‘are’ available under that law”). Fry, 137 S. Ct. at
755 (emphasis added) (citing Brief for United States
as Amicus Curiae (contrasting Section 1415(l) with
PLRA)). Similarly, Ross observed that an exhaustion
provision making distinctions based on forms of relief
“sought” would create a more permissive exhaustion
provision than the PLRA’s. 578 U.S. at 640.
Section 1415(l)’s enactment history in response to
this Court’s decision in Smith also supports incorporating administrative law exceptions. Smith held that
disabled students could challenge matters related to
9
their special education only through the IDEA. 468
U.S. 992, 1009 (1982). In Smith, this Court also recognized that a futility exception applied to the IDEA. See
id. at 1014 n.17. Congress responded to Smith’s limitations on the pursuit of claims by enacting Section
1415(l) to “re-affirm . . . the viability of ” other federal
statutes “as separate vehicles for ensuring the rights
of handicapped children.” H.R. Rep. No. 99-296, at 4
(1985). While Congress intended to channel special education complaints through the administrative process, exhaustion would not be required when “it would
be futile” or “it is improbable that adequate relief can
be obtained by pursuing administrative remedies (e.g.,
the hearing officer lacks the authority to grant the relief sought).” Id. at 7; accord S. Rep. No. 99-112, at 15
(1985). In addition to the explicit legislative history
about preserving a futility exception, it can be assumed that Congress was aware of Smith’s recognition
of the exception when it passed Section 1415(l). See
Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990). After
Section 1415(l)’s enactment, this Court continued to
recognize that exhaustion exceptions applied in the
IDEA context. See Honig, 484 U.S. at 327 (citing Smith,
468 U.S. at 1014 n.17).
Nothing in Ross should alter the understanding
from Smith and Honig that the IDEA permits exceptions to exhaustion. See generally Ross, 578 U.S. at
649–50 (Breyer, J., concurring) (suggesting that “wellestablished” administrative law exceptions apply to
statutory exhaustion provisions, even if “freewheeling”
exceptions do not). Nor did Ross overrule prior cases
10
of this Court excusing exhaustion based on futility, including in statutory contexts. See Bethesda Hosp. Ass’n
v. Bowen, 485 U.S. 399, 404 (1988) (finding that statutory review process does not require futile presentation of question that is beyond reviewer’s authority);
Montana Nat’l Bank of Billings v. Yellowstone Cnty.,
276 U.S. 499, 505 (1928) (recognizing futility of application to agency that was “powerless to grant any
appropriate relief ”); see also Union Pac. R.R. Co. v. Bd.
of Cnty. Comm’rs, 247 U.S. 282, 287 (1918) (rejecting
requirement that railroad exhaust state statutory
scheme for contesting tax assessment because there
was doubt as to whether administrative process could
provide relief ).
The common thread running through the futility
cases is a pragmatic concern with preventing useless
exercises that will not serve any of the purposes of the
exhaustion doctrine. See Bowen v. City of New York, 476
U.S. 467, 484 (1986) (emphasizing “intensely practical”
approach to exhaustion). In the context of the Social
Security Act, another remedial statute, the Court has
excused exhaustion when further administrative processes would be futile. See id. at 485 (excusing exhaustion when “there was nothing to be gained from
permitting the compilation of a detailed factual record,
or from agency expertise”); Weinberger v. Salfi, 422 U.S.
749, 765 (1975) (recognizing futility of exhaustion
when agency could not resolve constitutional claim).
After Ross, the Court has cited Bowen and Salfi with
approval and once again recognized that exhaustion
need not be required where it “would serve no
11
meaningful purpose.” Smith v. Berryhill, 139 S. Ct.
1765, 1776, 1780 n.21 (2019). Finally, last term, in the
related context of issue exhaustion, the Court reaffirmed that it “has consistently recognized a futility exception to exhaustion requirements.” Carr v. Saul, 141
S. Ct. 1352, 1361 (2021) (acknowledging futility of forcing litigants to raise Appointments Clause challenges
to ALJs in administrative process).
By misconstruing Ross’s careful PLRA analysis
as a blanket prohibition against all standard administrative law exceptions, the Sixth Circuit upends
longstanding, integral features of exhaustion doctrine.
II.
The Sixth Circuit’s Decision Frustrates the
Goal of Promoting Voluntary Settlement
and Is Not Justified by Any Purposes of Exhaustion
The Sixth Circuit’s decision works at cross-purposes
with the IDEA’s goals of providing prompt services and
fostering the early, voluntary resolution of educational
disputes. It will force students to either relinquish
non-IDEA claims to receive special education services
promptly or place themselves at educational risk by
rejecting a settlement to pursue those non-IDEA
claims that Section 1415(l) sought to protect. Inevitably, the decision will deter IDEA settlements. It will
also require exhaustion when it would be nothing more
than an empty formality.
12
A. The IDEA is Structured to Resolve Disputes Quickly in Order to Provide
Timely Special Education Services
A proper interpretation of a provision’s text “requires a consideration of the entire statutory scheme.”
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 523
(2007). The IDEA’s overarching purpose is to ensure
that children with disabilities receive a FAPE that
will meet their unique needs and prepare them for
further education, employment, and independent living. See 20 U.S.C. §§ 1400(d)(1)(A); 1412(a)(1); 1401(9).
FAPE services are provided in conformity with the
child’s individualized education program (IEP) developed through a collaborative process among parents,
educators, and other experts. See Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988,
994 (2017) (requiring “careful consideration of the
child’s individual circumstances”).
Further, the IDEA is designed to provide a FAPE
“with the speed necessary to avoid detriment to the
child’s education.” Forest Grove Sch. Dist. v. T.A., 557
U.S. 230, 245 (2009) (citation omitted). This emphasis
on prompt provision of services comports with research
demonstrating that intervention is the best path toward independence and mitigation of the disabling effects of a child’s condition.4 For disabled students who
4
See, e.g., National Ctr. on Birth Defects and Developmental
Disabilities, Centers for Disease Control and Prevention, Why
Act Early if You’re Concerned about Development? (Apr. 19, 2021),
https://www.cdc.gov/ncbddd/actearly/whyActEarly.html. In the case
of Deaf students, appropriate language services are needed to
13
must regularly practice educational and functional
skills, such as students with developmental disabilities, “[e]very instructional minute is important [and]
missing even a few weeks of school can undo months
or even years of progress.” E.E. v. California, No. 21-cv07585-SI, 2021 WL 5139660, at *7 (N.D. Cal. Nov. 4,
2021) (cleaned up) (quoting special education expert).
The statute also contains dispute resolution procedures for when disagreements arise, which encourage voluntary settlement at multiple points in the
administrative process. See Pet. 5–6. Consistent with
this preference for voluntary dispute resolution, most
parents do resolve their disputes without adversarial
hearings.5 For example, almost eighty percent of due
process complaints filed and resolved nationwide in
develop the social and communication skills required for nearly
every aspect of adult life. See generally Susan R. Easterbrooks et
al., Ignoring Free, Appropriate, Public Education, a Costly Mistake: The Case of F.M. & L.G. versus Barbour County, 9 J. Deaf
Stud. & Deaf Educ. 219 (2004). Deaf students denied these services often never fully catch up, even with compensatory education, leaving some with permanent developmental problems, and
many with reduced employability and earning potential. Id. at
225; see Wyatte C. Hall, What You Don’t Know Can Hurt You: The
Risk of Language Deprivation by Impairing Sign Language Development in Deaf Children, 21 Maternal & Child Health J. 961,
962 (2017).
5
See U. S. Gov’t Accountability Off., GAO-20-22, Special
Education: IDEA Dispute Resolution Activity in Selected States
Varied Based on School Districts’ Characteristics 9–11 (2019)
[hereinafter GAO Report] (noting increase in mediation requests,
decline in due process complaints, and sharp decline in full adjudications at hearings).
14
2018–19, were resolved without a hearing.6 Any construction of the exhaustion requirement should consider the statutory scheme that has successfully
encouraged voluntary settlements prior to a full administrative hearing.
B. The Sixth Circuit’s Decision Undermines the Goal of this Court and Congress to Encourage Voluntary Dispute
Resolution
The Sixth Circuit’s decision will force those families who wish to preserve intentional discrimination
damage claims to reject acceptable IDEA settlements
and pursue (no longer disputed) FAPE issues, through
administrative hearings that cannot provide any additional relief. Inevitably, it will discourage future settlements of IDEA claims, to the likely detriment of all
parties. See Marek v. Chesny, 473 U.S. 1, 10–11 (1985)
(noting that settlements benefit plaintiffs and defendants alike). Such a result runs contrary to the general
public policy favoring settlement of disputes to avoid
the extensive time, money, and judicial resources traditionally expended in further litigation. McDermott,
Inc. v. AmClyde, 511 U.S. 202, 215 (1994); see also F.T.C.
v. Actavis, Inc., 570 U.S. 136, 154 (2013) (discussing policy favoring settlements). Because of these advantages,
settlement is “the modal civil case outcome.” Theodore
6
Center for Appropriate Disp. Resol. in Special Educ., IDEA
Dispute Resolution Data Summary for: U.S. and Outlying Areas
2008–09 to 2018–19, 11–12 (2020), https://www.cadreworks.org/
resources/cadre-materials/2019-20-dr-data-summary-national.
15
Eisenberg & Charlotte Lanvers, What is the Settlement
Rate and Why Should We Care?, 6 J. Empirical Legal
Stud. 111, 112 (2009).
Like the significant number of individuals who resolve educational disputes without adversarial hearings, see GAO Report 9–11, Perez and the school
district reached a settlement prior to an adversarial
hearing. The district agreed to provide him with placement at a school for the deaf and compensatory education and related services. Pet. App. 2a. Perez agreed to
release the district from liability related to his IDEA
claim but not his anti-discrimination claims. See id.
This type of bifurcated resolution is not unusual; parties often settle some issues or claims and save others
for later resolution by settlement or trial. See, e.g., 1
California Deskbook on Complex Civil Litigation Management § 4.34 (2021). Parties also frequently settle
injunctive claims to obtain immediate relief while saving damages claims for subsequent resolution. See Carson v. American Brands, Inc., 450 U.S. 79, 89–90 (1981)
(endorsing this practice); see also 8 Moore’s Federal
Practice—Civil § 42.20 (2021) (discussing traditional
divisibility of liability and damages determinations);
13 Moore’s Federal Practice—Civil § 68.03 (2021) (discussing Fed. R. Civ. Pro. 68(c), which permits formal
offers to settle damages after defendant’s liability has
been established).
Because “the law favors compromise . . . when
parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced.”
66 Am. Jur. 2d Release § 2 (2021). The decision below
16
undercuts the settlement agreement reached within
the administrative process. This Court’s intervention
is needed to ensure that this decision does not undermine the goal of encouraging voluntary settlements,
both as an aim of the IDEA and, more generally, as the
policy preference of this Court and Congress.
C. Requiring a Disabled Student to Have
a Hearing on Claims that Have Already
Been Resolved Does Not Further the
Purposes of Exhaustion
This Court’s intervention is needed to ensure that
exhaustion does not become “a vain exercise” that fails
to serve its underlying purposes of protecting administrative agency authority and promoting judicial efficiency. See Carr, 141 S. Ct. at 1361 (citing McCarthy v.
Madigan, 503 U.S. 140, 145 (1992)). The purposes of
IDEA exhaustion are to permit agencies to exercise
discretion and apply educational expertise, facilitate
“exploration of technical educational issues,” develop a
factual record, and “promote[ ] judicial efficiency by
giving these agencies the first opportunity to correct
shortcomings in their educational programs for disabled children.” Hoeft v. Tucson Unified Sch. Dist., 967
F.2d 1298, 1303 (9th Cir. 1992). The justification for
exhaustion is strongest when its purposes are served.
See Bowen 476 U.S. at 484 (“The ultimate decision of
whether to waive exhaustion . . . should also be guided
by the policies underlying the exhaustion requirement.”). Thus, when an agency lacks institutional competence to adjudicate an issue or lacks authority to
17
grant relief requested, courts apply well-established
administrative law exceptions to avoid imposing exhaustion as an empty exercise. McCarthy, 503 U.S. at
147–48.
But exhaustion of the IDEA process makes little
sense for a damage claim under Title II of the ADA,
particularly given that the IDEA hearing officer lacks
authority to award damages. See Fry, 137 S. Ct. at 752
n.4. The IDEA hearing officer’s remedial powers are
limited to equitable relief awarding future special education and related services and reimbursement of
parents’ past out-of-pocket educational expenditures.
See School Comm. of Burlington v. Dept. of Educ. of
Mass., 471 U.S. 359, 369–71 (1985). In addition, in
states like Michigan, the hearing officer lacks basic jurisdiction to hear ADA claims. Pet. App. 2a, 37a-38a.
Moreover, exhausting IDEA processes to bring claims
for past intentional wrongs will not serve the purpose
of permitting an agency to correct its mistakes since it
cannot undo its past intentional discrimination in the
administrative process. Requiring a hearing when students cannot obtain the relief they are seeking would
be futile. See Doucette, 936 F.3d at 22 (holding it futile
to require hearing in order to assert Section 1983 claim
in part because money damages could not be awarded
in administrative process).
IDEA and ADA claims in the school setting are not
coextensive; therefore, the expertise of the hearing officer and administrative record created are of limited
value in resolving ADA claims. The central questions
in an IDEA claim are whether the school followed
18
IDEA procedures and whether the child received a
FAPE. Board of Educ. of Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. 176, 206–07 (1982); see also 20
U.S.C. § 1415(f )(3)(E). On the other hand, the central
questions in an ADA damage claim are: 1) whether a
school provided the disabled student with equal and
non-discriminatory access to and participation in its
programs, see 42 U.S.C. § 12132, and 2) whether the
discrimination was intentional. See, e.g., Miraglia v.
Bd. of Supervisors of the La. State Museum, 901 F.3d
565, 574 (5th Cir. 2018).
A finding that a child was provided a FAPE does
not determine whether equal access or effective communication was provided under the ADA. See K.M. ex
rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088,
1099 (9th Cir. 2013) (holding ADA effective communication claim not foreclosed by finding that plaintiffs
with hearing disabilities had been provided a FAPE).
Alternatively, even if a hearing officer determines that
a child was denied a FAPE, such a determination does
not establish the intent required for an ADA damage
claim, which requires plaintiffs to demonstrate bad
faith, deliberate indifference, or gross misjudgment.7
Federal courts, not IDEA hearing officers, have unique
7
See, e.g., S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729
F.3d 248, 265 (3d Cir. 2013) (requiring deliberate indifference);
D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d
450, 455 (5th Cir. 2010) (requiring bad faith or gross departure
from accepted educational standards); see also Nieves–Marquez v.
Puerto Rico, 353 F.3d 108, 126–27 (1st Cir. 2003) (suggesting discriminatory animus required).
19
expertise in assessing such claims, as they routinely
consider whether plaintiffs have proffered sufficient
evidence on intent to create triable issues of fact in discrimination claims. See, e.g., C.L. v. Scarsdale Union
Free Sch. Dist., 744 F.3d 826, 841 (2d Cir. 2014) (granting summary judgment against parents on Section 504
claim, even though IDEA violation shown, because of
insufficient evidence of “bad faith or gross misjudgment”). And the record of a hearing would not reach
the additional question of whether and to what extent
the ADA plaintiff suffered emotional distress, which
may be determined by a jury, in any event. See, e.g.,
Dorsey v. City of Detroit, 157 F. Supp. 2d 729, 732 (E.D.
Mich. 2001).
Finally, it is certainly inefficient to hold a hearing
where, as here, a student has obtained all possible
IDEA relief through a settlement with the district. In
Muskrat v. Deer Creek Public Schools, the Tenth Circuit held that parents who had already obtained a
change to their child’s IEP need not pursue “a formal
due process hearing—which in any event cannot
award damages—simply to preserve their damages
claim.” 715 F.3d at 785.
For these reasons, the Sixth Circuit’s unfounded
assertion that a further administrative record “would
have improved the accuracy and efficiency of judicial
proceedings,” Pet. App. 13a, should be rejected. The benefit of any peripheral factfinding would be marginal.
The hearing officer’s relevant expertise is limited. See
20 U.S.C. § 1415(f )(3)(A)(ii). Holding a hearing—when
the parties no longer dispute the appropriate relief
20
under the IDEA—wastes the time and resources of
both the parties and the administrative forum. And
what would the hearing officer even address at such a
hearing? Certainly, requiring exhaustion under these
circumstances does not serve the doctrine’s purposes.
III. The Sixth Circuit’s Decision is Contrary to
Section 1415(l)’s Text
A. Section 1415(l) Should Be Read According to Its Plain Language
As correctly argued by Petitioner, Section 1415(l)
does not require exhaustion prior to commencement of
a non-IDEA claim for compensatory damages because
that relief cannot be provided under the IDEA. See Pet.
30–34. This Court has often stated that a statute must
be interpreted “in accord with the ordinary public
meaning of its terms at the time of its enactment.” See,
e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738
(2020).
In Fry, the Court addressed the meaning of Section 1415(l)’s language “seeking relief that is also
available under [the IDEA].” Considering the ordinary meaning of “relief ” and “available,” the Court explained that the “relief available under the IDEA” is
relief for the denial of a FAPE. Fry, 137 S. Ct. at 753
(citing Ross, 136 S. Ct. 1850, 1858). That relief is “available . . . when it is ‘accessible or may be obtained,’ ” but
not when the child would be sent away from the IDEA
forum “empty-handed.” Id. at 753–54 (citation omitted). Fry provided this guidance on when relief is
21
available under the IDEA but refrained from answering the question on which certiorari had been granted:
whether a student with a non-IDEA claim for compensatory damages must exhaust IDEA processes, even
though the student cannot get monetary relief in the
IDEA forum. See id. at 752 n.4.
The unanswered Fry question is critical because,
as explained in Part II.C, supra, the IDEA hearing officer has limited equitable powers and lacks authority
to award monetary relief beyond reimbursement of
past out-of-pocket expenditures for education-related
services. Under the language of the statute, since students seeking monetary damages for past injuries under another federal law cannot get that relief from the
IDEA hearing, they should not have to exhaust IDEA
processes.
In Fry, the Solicitor General urged the Court to
adopt just such a textual reading of Section 1415(l). See
Brief for the United States as Amicus Curiae at 32, Fry,
137 S. Ct. 743 (No. 15-497) Similarly, five dissenting
judges of the Ninth Circuit recently endorsed this literal interpretation “because damages are not a form of
relief available under the IDEA.” See D.D., 18 F.4th at
1058–62 (Bumatay, J., concurring in part and dissenting in part). Courts, however, have generally declined
to adopt this straightforward reading and have been
unwilling to excuse plaintiffs from IDEA exhaustion
despite an independent claim for monetary damages.
See McMillen v. New Caney Indep. Sch. Dist., 939 F.3d
640, 643, 645–48 (5th Cir. 2019) (dismissing on exhaustion grounds damage claim found to be perfectly
22
coextensive with FAPE claim and collecting cases
from eight circuits). Despite this seemingly lopsided
tally, “[t]he question may be a closer one than the circuit scorecard suggests.” Id. at 647 (discussing but not
adopting textualist interpretation of Section 1415(l)).
The Court could alleviate this continuing confusion by
adopting the textual reading of Section 1415(l) that
it has required in other contexts, and that has been
urged by the United States.
Clarification of this point would not result in a
rush to file damage claims against school districts.
First, evidence indicates that parents already have difficulties accessing even the more user-friendly IDEA
administrative procedures, see GAO Report 20, 28, and
parents are at least as likely to be deterred by the even
greater barriers to commencing a federal court action.
The additional evidentiary standards for establishing
intentional discrimination and entitlement to emotional distress damages, see supra note 7, at 18, also
create further barriers. Consequently, there is little incentive to file ADA damage claims except in the most
egregious cases.
B. The Arguments for Requiring Exhaustion Are Non-Textual and Unsupportable After a Student Has Accepted an
IDEA Settlement
Citing non-textual concerns, some courts have
been reluctant to dispense with exhaustion for damage claims. The concern is that unless exhaustion is
23
required, parents will try to circumvent the IDEA administrative process and go straight to court either after letting the IDEA clock run out on their FAPE claim
or by simply “tacking on” a monetary damage claim.
See McMillen, 939 F.3d at 648; Cudjoe v. Indep. Sch.
Dist. No. 12, 297 F.3d 1058, 1067 (10th Cir. 2002); Polera v. Board of Ed., 288 F.3d 478, 487–88, 490 (2d Cir.
2002). Even if factors outside the statute’s text merited
consideration, these non-textual concerns do not apply
to the procedural posture here. Perez attempted to
bring his ADA claim in the IDEA forum, only to have
that claim dismissed at the behest of the school district. He also fully resolved his IDEA claim in a settlement with the district. Under such circumstances, it
cannot be said that he used his damage claim to evade
IDEA review. Perez pursued that IDEA administrative
process until he was offered the relief he was seeking—
this was not an effort to prematurely interrupt the administrative process. See McKart v. United States, 395
U.S. 185, 193 (1969). He then pursued his ADA claim
for the additional relief that was not available under
the IDEA. This is precisely as the statute, according to
its language, was intended to work.
Students like Perez may suffer dual deprivations.
According to Fry, they can seek relief for both harms
by bringing a FAPE claim challenging an IEP and an
ADA claim challenging “discriminatory access to public institutions,” even when “[t]he same conduct might
violate [both] statutes.” Fry, 137 S. Ct. at 756. Importantly,
the complaint “seeking redress for those other harms
[such as the refusal to make an accommodation under
24
the ADA], independent of any FAPE denial, is not subject to § 1415(l)’s exhaustion rule.” Id. at 754–55 (emphasis added). Under Section 1415(l)’s language and
Fry’s guidance, the IDEA claim requires exhaustion,
and the independent ADA claim should not.
In decisions contrary to Section 1415(l)’s language,
however, courts are requiring exhaustion prior to litigation of overlapping but independent discrimination
claims, even after students have satisfactorily resolved
their FAPE claims. See Pet. App. 8a; McMillen, 939
F.3d at 643, 646–48 (dismissing non-IDEA damage
claims for failure to exhaust despite the family’s agreement to leave the school district). In such cases, where
the student has resolved a FAPE claim—at any stage
in the IDEA administrative process—the student has
fulfilled the IDEA obligation to resolve the special education claim in collaboration with school officials.
Muskrat, 715 F.3d at 778. Having done so, the student
should have a right unfettered by any IDEA exhaustion requirement to bring a non-IDEA claim seeking
damages. For Perez, once he settled his FAPE claim, he
could not get any other relief from the IDEA process.
At that point, his ADA claim could not possibly be one
“seeking relief available under [the IDEA].” Rather
than reach this inescapable conclusion, the Sixth Circuit determined that, even in the face of a settlement
agreement that preserved his ADA claims, by settling
his IDEA claims, Perez “traded off ” his right to bring
his ADA claim. Pet. App. 9a. This is not the type of
tradeoff that the student can or should be asked to
make under Section 1415(l).
25
The Court should correct this dramatic departure
from the statute’s command. Without such clarification, courts will continue to require exhaustion just because the suit “arises directly from a school’s treatment
of a child with a disability—and so could be said to relate in some way to her education.” See Fry, 137 S. Ct.
at 754. Here, the Sixth Circuit required IDEA exhaustion because Perez’s ADA claim for damages touched
on his “core complaint” of the denial of an appropriate
education. Pet. App. 8a-9a.8 Such a reading interprets
Section 1415(l) language not as “ ‘a civil action seeking
relief that is also available under IDEA’ . . . but instead, [as] involving a situation that hypothetically
might be addressed in some way under the IDEA.”
Mark C. Weber, A New Look at Section 504 and the
ADA in Special Education Cases, 16 Tex. J. C.L. & C.R.
1, 25 (2010). Rather than remaining faithful to the
statutory language, the decision below treats Section
1415(l) as a “quasi-preemption provision, requiring exhaustion for any case that falls within the general
‘field’ of educating disabled students,” see generally Fry,
137 S. Ct. 752 n.3 (citation omitted), and returns us to
the days before Section 1415(l)’s enactment.
---------------------------------♦---------------------------------
8
This analysis is notably similar to the Sixth Circuit’s
analysis before this Court’s Fry decision. See Fry v. Napoleon
Cmty. Sch., 788 F.3d 622, 627 (6th Cir. 2015) (requiring IDEA
exhaustion to bring non-IDEA damage action challenging denial
of right to use service dog at school because claim related to denial
of FAPE), vacated and remanded, Fry, 137 S. Ct. 743.
26
CONCLUSION
For these reasons, amici curiae respectfully urge
this Court to grant the petition for a writ of certiorari.
January 12, 2022
Respectfully submitted,
LESLIE SALZMAN
Counsel of Record
REBEKAH DILLER
CARDOZO BET TZEDEK
LEGAL SERVICES
BENJAMIN N. CARDOZO
SCHOOL OF LAW
55 Fifth Avenue, 11th Floor
New York, NY 10003
646-592-6570
Salzman@yu.edu
Counsel for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.