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.

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