Amicus Curiae Brief — Miguel Luna Perez, Petitioner v. Sturgis Public Schools, et al.

No. 21-887

IN THE

Supreme Court of the United States

_________

MIGUEL LUNA PEREZ,

Petitioner,

v.

STURGIS PUBLIC SCHOOLS; STURGIS PUBLIC SCHOOLS

BOARD OF EDUCATION,

Respondents.

________

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

________

BRIEF OF SENATOR TOM HARKIN,

REPRESENTATIVE TONY COELHO, AND

REPRESENTATIVE GEORGE MILLER AS

AMICI CURIAE IN SUPPORT OF PETITIONER

________

DAVID A. STRAUSS

SARAH M. KONSKY

Counsel of Record

JENNER & BLOCK

SUPREME COURT AND

APPELLATE CLINIC AT

THE UNIVERSITY OF

CHICAGO LAW SCHOOL

1111 E. 60th Street

Chicago, IL 60637

konsky@uchicago.edu

(773) 834-3190

MATTHEW S. HELLMAN

JENNER & BLOCK LLP

1099 New York Avenue NW

Washington, DC 20001

CLAUDIA CENTER

DISABILITY RIGHTS

EDUCATION & DEFENSE

FUND

3075 Adeline St., Ste 210

Berkeley, CA 94703

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................... ii

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................... 3

ARGUMENT ...................................................................... 6

I.

Section 1415(l) Was Enacted In Response

To Smith v. Robinson. ........................................... 7

II.

Congress Adopted The HCPA And

§ 1415(l) To Ensure That Litigants Would

Be Able To Benefit Fully From All

Disability Rights Legislation................................ 9

III.

The IDEA Does Not Require Exhaustion

When Exhaustion Would Be Futile ................... 17

IV.

The Court Should Construe § 1415(l)

According To Its Plain Language And

Congress’s Clear Intent. ..................................... 21

CONCLUSION ................................................................ 26

ii

TABLE OF AUTHORITIES

CASES

Bethesda Hospital Ass’n v. Bowen, 485 U.S.

399 (1988) ................................................................. 17

Board of Education of Hendrick Hudson

Central School District v. Rowley, 458

U.S. 176 (1982) ........................................................... 2

Fry v. Napoleon Community Schools, 580

U.S. 154 (2017) ................................................... 13, 22

Glover v. St. Louis-San Francisco Railway

Co., 393 U.S. 324 (1969) .......................................... 17

Smith v. Robinson, 468 U.S. 992 (1984) ... 4, 7, 8, 17, 22

STATUTES

20 U.S.C. § 1415(l) .......................... 3, 4, 9, 11, 15, 18, 22

42 U.S.C. § 12101(b)(1) ................................................. 23

42 U.S.C. § 12132 .......................................................... 25

Handicapped Children’s Protection Act of

1986, Pub. L. No. 99-372, 100 Stat. 796 .............. 4, 5

LEGISLATIVE MATERIALS

121 Cong. Rec. 37,416 (1975) ................................. 17, 19

130 Cong. Rec. 20,597 (1984) ............................. 9, 10, 22

130 Cong. Rec. 20,598 (1984) ....................................... 22

130 Cong. Rec. 20,623 (1984) ....................................... 11

130 Cong. Rec. 20,702 (1984) ......................................... 9

130 Cong. Rec. 20,761 (1984) ....................................... 10

iii

131 Cong. Rec. 5064 (1985) .......................................... 20

131 Cong. Rec. 21,389 (1985) ....................................... 16

131 Cong. Rec. 21,391 (1985) ....................................... 16

131 Cong. Rec. 21,392 (1985) ................................. 16, 18

131 Cong. Rec. 21,393 (1985) ..................... 13, 18, 19, 24

131 Cong. Rec. 31,370 (1985) ....................................... 16

131 Cong. Rec. 31,376 (1985) ....................................... 19

132 Cong. Rec. 17,608 (1986) ....................................... 22

H.R. 1523, 99th Cong. (1985) ....................................... 10

H.R. Rep. No. 99-296 (1985) ........................ 5, 12, 18, 19

H.R. Rep. No. 105-95 (1997) ........................................ 20

H.R. Rep. No. 108-77 (2003) ........................................ 20

Handicapped Children’s Protection Act:

Hearings on H.R. 1523 Before the

Subcomm. on Select Educ. of the H.

Comm. on Educ. and Lab., 99th Cong.

(1985) .................................................................. 14, 15

Handicapped Children’s Protection Act of

1985: Hearings on S. 415 Before the

Subcomm. on the Handicapped of the S.

Comm. on Lab. and Human Res., 99th

Cong. (1985) ....................................................... 14, 15

S. 415, 99th Cong. (1985) .............................................. 10

S. Rep. No. 99-112 (1985) ....................................... 12, 18

S. Rep. No. 108-185 (2003) ........................................... 20

iv

OTHER AUTHORITIES

Founder, Loyola Law School: The Coelho

Center, https://www.lls.edu/coelhocen

ter/ourmissionandguidingprinciples/fou

nder/ (last visited Nov. 14, 2022) ............................ 2

Myron Schreck, Attorneys’ Fees for

Administrative Proceedings Under the

Education of the Handicapped Act: of

Carey, Crest Street and Congressional

Intent, 60 Temple L.Q. 599 (1987) .......................... 9

1

INTEREST OF AMICI CURIAE 1

Amici Senator Tom Harkin, Representative Tony

Coelho, and Representative George Miller are former

Members of Congress who have championed the rights

of individuals with disabilities throughout their careers.

All three amici were members of Congress when the

language of 20 U.S.C. § 1415(l) was enacted. All three

amici also were involved in subsequent amendments

and reauthorizations of the Individuals with Disabilities

Education Act (IDEA). They authored, sponsored, and

introduced the Americans with Disabilities Act (ADA).

As recognized leaders in education and disability rights

legislation, amici have shaped the body of disability

rights legislation, including the exhaustion provision, 20

U.S.C § 1415(l), at issue in this case.

Senator Harkin has devoted his career to disability

rights. As chair of the Subcommittee on Disability

Policy, he sponsored the ADA. Later, Senator Harkin

became chair of the Senate Health, Education, Labor

and Pensions Committee. He has previously joined

amicus briefs (see, e.g., Brief of 118 Members of Congress

as Amici Curiae in Support of Petitioner, Endrew F. ex

rel. Josheph F. v. Douglas Cnty. Sch. Dist. RE-1, 580

U.S. 386 (2017) (No. 15-827), 2016 WL 6873059), and this

Court has drawn on his statements from the time of the

1

This brief was not authored in whole or part by counsel for a party.

No one other than amici curiae or their counsel made a monetary

contribution to preparation or submission of this brief. Blanket

letters of consent to filing from counsel for all parties are on file with

the Clerk.

2

IDEA’s enactment. Bd. of Educ. of Hendrick Hudson

Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 201 n.23 (1982).

He also founded the Harkin Institute, which carries on

this legacy by promoting disability rights worldwide.

Representative Tony Coelho was likewise crucial to

the inception of the ADA and championing the rights of

people with disabilities. Representative Coelho has

founded his own disability rights advocacy group with

Loyola Marymount University. He has been recognized

as a leader in disability law by President George Bush

and Governor Edmund Brown. Founder, Loyola Law

School: The Coelho Center, https://www.lls.edu/

coelhocenter/ourmissionandguidingprinciples/founder/

(last visited Nov. 14, 2022).

Representative George Miller, too, was instrumental

in the implementation of the IDEA and in amending the

ADA. Representative Miller formerly chaired the House

Education and Labor Committee. Like the other amici,

he has devoted his long career to disability rights and

now serves on the advisory committee of an organization

that works to make accessible exercise equipment, along

with Senator Harkin and Representative Coelho.

Congress enacted the IDEA, the ADA, and other

seminal legislation to ensure that individuals with

disabilities have the right to full and equal participation

in all aspects of society, including in the classroom. As

key authors of these landmark civil rights laws, amici

have an interest in ensuring that individuals with

disabilities retain the ability to enforce all of the rights

guaranteed to them under the law. Accordingly, amici

urge this Court to interpret the exhaustion requirement

3

of the IDEA consistent with its text and purpose, and

hold that it does not require exhaustion where a plaintiff

seeks relief the IDEA does not offer or where

exhaustion would otherwise be futile.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Amici believe that the plain language of the

provision at issue in this case, 20 U.S.C. § 1415(l), and its

legislative history make three propositions indisputably

clear.

First, in passing § 1415(l), Congress intended to

ensure that students with disabilities and their families

could enforce all of the rights and obtain all of the

remedies available to them under the Constitution and

the federal laws protecting students with disabilities.

Second, the exhaustion provision in § 1415(l) is,

accordingly, narrow: it requires exhaustion under the

Individuals with Disabilities Education Act (“IDEA”),

20 U.S.C. § 1400 et seq, only when a plaintiff is “seeking

relief that is also available under [the IDEA].” 20 U.S.C.

§ 1415(l). Congress in fact considered, but rejected, a

proposal to include a broad exhaustion requirement that

would have applied even if plaintiffs, like petitioners

here, sought relief under other statutes. The rejected

proposal would have required exhaustion unless the

IDEA did not “provide remedies to the handicapped

individual,” meaning that exhaustion would have been

required wherever the plaintiff could seek an IDEA

remedy. Congress chose a narrower exhaustion regime,

4

requiring exhaustion only to the extent plaintiff was

actually seeking relief provided by the IDEA.

Third, Congress did not intend to require exhaustion

in circumstances where exhaustion would be futile.

Congress adopted the exhaustion provision against a

backdrop of statutes whose exhaustion provisions had

been construed to incorporate a futility exception. And

the legislative history indicates that Congress clearly

understood and intended § 1415(l) to contain that same

exception for futility, lest the provision needlessly

hinder claimants in their pursuit of the remedies that

federal law permits.

Specifically, Congress enacted § 1415(l) to overturn

the Supreme Court’s holding in Smith v. Robinson, 468

U.S. 992 (1984). In Smith, this Court held that the

Education for All Handicapped Children Act (the

“EHA”) provided the exclusive rights and procedures

for challenging the failure to provide a free appropriate

public education, precluding substantively identical

claims under both the Constitution and other laws. Id. at

1011-13, 1019-21.

Just weeks after that decision, legislators introduced

bills to overturn Smith. And the following session,

Congress enacted the Handicapped Children’s

Protection Act of 1986 (“HCPA”), Pub. L. No. 99-372,

100 Stat. 796. It clarified that the EHA, now known as

the IDEA, does not preempt suits enforcing rights

under separate laws, such as the Americans with

Disabilities Act. 20 U.S.C. § 1415(l). Thus, the IDEA

guarantees a free, appropriate public education

(“FAPE”) to children with disabilities. But, as Congress

5

stated in the HCPA, the IDEA “shall [not] be construed

to restrict or limit the rights, procedures, and remedies

available under the Constitution, [the Americans with

Disabilities Act of 1990,] title V of the Rehabilitation Act

… of 1973, or other Federal laws protecting the rights of

… children [with disabilities].” HCPA § 3, 100 Stat. at

797.

During its deliberations on the HCPA, Congress

added the narrow exhaustion provision at issue in this

case. Congress specifically considered the argument that

the statute should include a broad exhaustion

requirement, which would have required exhaustion

whenever a plaintiff had a claim for which the IDEA

offered relief even if the plaintiff was not seeking that

relief. Congress declined to adopt such language, though,

and instead enacted the narrow provision now at issue in

this case, which requires parties to exhaust their

administrative remedies only “before the filing of a civil

action under [the Constitution or other federal laws]

seeking relief that is also available under [the IDEA].”

Id. (emphasis added). That textual command reflects

Congress’s judgment that its exhaustion provision was

not designed to cover suits where “the hearing officer

lacks the authority [under the IDEA] to grant the relief

sought.” H.R. Rep. No. 99-296 at 7 (1985) (“House

Report”). And it does not cover suits where “it would be

futile to use the [IDEA’s] procedures.” Id.

The Sixth Circuit’s holding in this case runs afoul of

both the plain language Congress enacted in § 1415(l)

and Congress’ clear intent in enacting this provision. In

this case, Petitioner Perez seeks only money damages

6

under the ADA. It is undisputed that this remedy is not

available under the IDEA. And in addition, Petitioner

Perez previously settled his IDEA claims, rendering

further IDEA procedures futile. But the Sixth Circuit

nevertheless held that his ADA claim for money

damages must be dismissed for failure to exhaust.

The Sixth Circuit’s theory is unfaithful both to the

text of § 1415(l) and to Congress’s purpose. It warps a

provision that was designed to preserve the ability of

children with disabilities to enforce non-IDEA rights

into an obstacle that hinders access to the courts. That

was neither what Congress intended nor what it

accomplished. This Court should construe § 1415(l)

consistent with its plain meaning and purpose to

empower children with disabilities to enforce their

non-IDEA rights as well as their IDEA rights.

ARGUMENT

The Sixth Circuit misreads the IDEA’s narrow

exhaustion requirement. Congress intended that

§ 1415(l)’s exhaustion requirement be limited to cases in

which the relief sought is available under the IDEA. And

Congress intended that § 1415(l) would not require

plaintiffs to undertake exhaustion efforts that would be

futile. Congress recognized that the IDEA’s rights and

remedies, although important, are not the only legal

protections that children with disabilities enjoy at

school. Accordingly, Congress elected to empower

children with disabilities and their families to take

advantage of the full panoply of remedies available to

them under federal disability laws, requiring exhaustion

only when the remedies at issue are available under

7

theIDEA. That was Congress’s choice, and this Court

should respect it.

I.

Section 1415(l) Was Enacted In Response To

Smith v. Robinson.

The narrowly worded exhaustion language of

20 U.S.C. § 1415(l) was prompted by the holding of

Smith v. Robinson. In Smith, parents challenged a

school system’s refusal to pay for the private education

of their child, who had cerebral palsy and other

disabilities. The parents exhausted their administrative

remedies under the EHA and filed a lawsuit in the

district court. They contended that the school system’s

actions violated the child’s right to a “free, appropriate

educational placement without regard to whether or not

said placement can be made within the local school

system.” 468 U.S. at 998 (quoting complaint). Well into

the litigation, the plaintiffs filed an amended complaint

that added substantively identical claims under the

Equal Protection Clause and § 504 of the Rehabilitation

Act of 1973 and sought attorney’s fees as a prevailing

party under those laws. Id. at 1000.

The plaintiffs eventually prevailed on their EHA

claim. Having granted plaintiffs all the relief they

sought, the district court found it unnecessary to

adjudicate the merits of the plaintiffs’ other claims. 468

U.S. at 1000-01. It nonetheless awarded attorney’s

fees—which were not available under the EHA—

because the plaintiffs’ non-adjudicated claims were

sufficiently colorable. Id. at 1001-02. The court of appeals

reversed the fee award and this Court affirmed. Id. at

1002, 1020.

8

This Court held that Congress intended the EHA to

provide the exclusive rights and procedures for

challenging the failure to provide a free appropriate

public education, precluding substantively identical

claims under both the Constitution, 468 U.S. at 1012, and

§ 504, id. at 1019-21. It reasoned that, in a case “[w]here

§ 504 adds nothing to the substantive rights of a

handicapped child, we cannot believe that Congress

intended to have the careful balance struck in the EHA

upset by reliance on § 504 for otherwise unavailable

damages or for an award of attorney’s fees.” Id. at 1021.

Rather, it reasoned, “there is no doubt that the

remedies, rights, and procedures Congress set out in the

EHA are the ones it intended to apply to a handicapped

child’s claim to a free appropriate public education.” Id.

at 1019.

This Court took care to “emphasize the narrowness

of our holding.” 468 U.S. at 1021. It did not “address a

situation where the EHA is not available or where § 504

guarantees substantive rights greater than those

available under the EHA.” Id. Rather, it held only that

where “whatever remedy might be provided under § 504

is provided with more clarity and precision under the

EHA, a plaintiff may not circumvent or enlarge on the

remedies available under the EHA by resort to § 504.”

Id.

9

II.

Congress Adopted The HCPA And § 1415(l) To

Ensure That Litigants Would Be Able To

Benefit Fully From All Disability Rights

Legislation.

It was against that background that Congress passed

the HCPA and the narrowly worded exhaustion

language now at issue. From inception to enactment, the

legislative record evinces Congress’ clear intent to

overrule Smith and expand the rights and remedies

available to students and families. Congress explicitly

provided that exhaustion is required only where a

plaintiff “seek[s] relief that is also available under” the

IDEA. 20 U.S.C. § 1415(l). And the legislative history

makes clear that Congress meant what it said: only suits

seeking relief that the IDEA authorizes are subject to

exhaustion. That narrow exhaustion requirement

reflects Congress’s affirmative intent to ensure that

plaintiffs would have access to the full complement of

remedies afforded by federal disability law.

A. Congress moved quickly after Smith to introduce

legislation to overturn that decision. Just 19 days after

Smith was decided, bills were introduced in both the

House and Senate to overturn that decision’s holding

that individuals could not seek attorney’s fees under the

Rehabilitation Act where they had brought a claim

under the EHA. See Myron Schreck, Attorneys’ Fees for

Administrative Proceedings Under the Education of the

Handicapped Act: of Carey, Crest Street and

Congressional Intent, 60 Temple L.Q. 599, 612 n.91

(1987) (describing introduction of bills); see also 130

Cong. Rec. 20,597 (1984); 130 Cong. Rec. 20,702.

10

B. The bills introduced immediately after Smith did

not pass, but in the next congressional term, both

chambers considered

and

eventually enacted

reintroduced versions of those bills. Those bills became

the HCPA.

1. The original version of these bills did not contain

an exhaustion requirement, but—reflecting Congress’s

priorities—they did include the savings clause language

that would ultimately become the first half of 20 U.S.C.

§ 1415(l): “Nothing in this title shall be construed to

restrict or limit the rights, procedures, and remedies

available under the Constitution, title V of the

Rehabilitation Act of 1973, or other Federal statutes

prohibiting discrimination.” H.R. 1523, 99th Cong.

(1985); S. 415, 99th Cong. (1985).

The sponsor of the Senate bill, Senator Weicker,

explained that the bill’s central purpose was to

strengthen parents’ rights under the EHA, specifically

by allowing them to collect attorney’s fees. He further

explained that Congress and multiple administrations

had consistently assumed that the EHA and § 504 “were

intended to be free-standing, complementary—but not

identical—legislative acts.” 130 Cong. Rec. 20,597. See

also 130 Cong. Rec. 20,761 (statement of Rep. Austin J.

Murphy) (“[T]he [EHA] is intended to complement and

not preempt other Federal statutes that affect

handicapped children in elementary and secondary

education.”). Another Senator explained that the

legislation was necessary because Congress “never

envisioned” the EHA “as limiting or restricting the civil

11

rights of handicapped children” under other laws. 130

Cong. Rec. 20,623 (statement of Sen. Stafford).

2. During deliberations on those bills, Congress

considered proposals to add a broad exhaustion

requirement, which would have required exhaustion

whenever a plaintiff could have enforced IDEA rights

and sought IDEA remedies. Congress rejected those

proposals, however, and instead added the narrow

exhaustion provision at issue in this case. The enacted

version of the HCPA thus included both the savings

clause language and the exhaustion provision now

codified in § 1415(l). Again, the legislative history makes

clear that Congress’s intent was to ensure that

individuals would have access to the full complement of

remedies provided by federal anti-discrimination law.

The exhaustion provision ultimately adopted states:

“before the filing of a civil action under such laws seeking

relief that is also available under [the IDEA], the

[IDEA’s administrative procedures] shall be exhausted

to the same extent as would be required had the action

been brought under [the IDEA].” 20 U.S.C. § 1415(l).

Legislative history makes clear that Congress

understood well the meaning of the words it chose:

exhaustion applies only to claims that seek “relief” that

the IDEA provides.

a. Both the Senate and House committee reports

reflect Congress’s understanding that, consistent with

the actual language of the exhaustion provision,

exhaustion would only be required with respect to suits

actually seeking relief available under the EHA, such

12

that those suits could have been brought under the EHA

itself.

The House Report stated that “before going to court,

parents or guardians seeking relief that is also available

under EHA must exhaust administrative remedies

available under EHA to the same extent as would be

required had the action been brought under EHA.”

House Report at 7 (emphasis added). It then reiterated:

“In other words, parents alleging violations for section

504 and 42 U.S.C. [§] 1983 are required to exhaust

administrative remedies before commencing actions in

court where exhaustion would be required under EHA

and the relief they seek is also available under EHA.”

Id. (emphasis added). In practice, this meant that “a

parent is required to exhaust administrative remedies

where complaints involve the identification, evaluation,

education placement, or the provision of a free

appropriate public education to their handicapped child.”

Id. And even then exhaustion would not be required

where doing so would be futile—including where “the

hearing officer lacks the authority to grant the relief

sought.” Id.

The Senate Report reflected a similar understanding

that the exhaustion requirement was triggered when an

action sought the same remedies available under the

EHA. It stated that exhaustion was required “when a

parent brings suit under another law when that suit

could have been brought under the EHA.” S. Rep. No.

99-112, at 3 (1985) (emphasis added). Sen. Simon further

explained that exhaustion would not be necessary

“where the hearing officer lacks the authority to grant

13

the relief sought.” 131 Cong. Rec. 21,393 (1985). Sen.

Simon also noted that S. 415 was not meant to foreclose

the availability of other administrative options, let alone

options granted by other statutory schemes. Id. (“Nor is

S. 415 intended to modify existing policy regarding the

use of alternative avenues in pursuing complaints,

including: the filing of a complaint with the State

educational agency under the Education Department

General Administrative Regulations; or filing a

complaint with the Office of Civil Rights of the

Department of Education.”).

Thus, both committee reports clarify that, as this

Court recently wrote, “[t]he statutory language asks

whether a lawsuit in fact ‘seeks’ relief available under

the IDEA—not, as a stricter exhaustion statute might,

whether the suit ‘could have sought’ relief available

under the IDEA … .” Fry v. Napoleon Cmty. Schs., 580

U.S. 154, 169 (2017).

b. There is still further confirmation that the

exhaustion provision is limited to claims that seek relief

the IDEA offers: Congress considered and rejected an

alternative proposal that would have imposed exactly

the sort of broad exhaustion requirement against which

the enacted statutory language contrasts.

The National School Board Association (“NSBA”)

requested a broad exhaustion provision that would have

required exhaustion of IDEA claims in any case where a

plaintiff could have enforced IDEA rights and sought

IDEA remedies. Before the Senate, NSBA argued that,

because “parents of handicapped students who are

asserting claims of a violation of their right to a free

14

appropriate public education are fully protected by

EHA,” it would be unnecessary and counterproductive

to permit them to bring § 504 claims alleging such

violations outside the strictures of the EHA process.

Handicapped Children’s Protection Act of 1985:

Hearing on S. 415 Before the Subcomm. on the

Handicapped of the S. Comm. on Lab. and Human Res.,

99th Cong. 74 (1985) (“Senate Hearing”). For such

claims, the NSBA argued, “by not requiring plaintiffs to

exhaust the remedies of EHA, the EHA process itself is

weakened.” Id. at 75.

Similarly,

before

the

House,

an

NSBA

representative expressed the same concern about claims

under other laws that simply enforced the EHA right to

a free appropriate public education:

If Section 504 is simply a superfluous claim that adds

nothing to a handicapped child’s substantive right to

a free appropriate public education, then

handicapped plaintiffs should be limited to seeking

relief under the EHA. To provide otherwise would

allow handicapped plaintiffs to forego the

administrative procedures in the EHA and file a

complaint, either with OCR or a court, under Section

504.

Handicapped Children’s Protection Act: Hearing on

H.R. 1523 Before the Subcomm. on Select Educ. of the H.

Comm. on Educ. and Lab., 99th Cong. 27 (1985) (“House

Hearing”) (testimony of Jean Arnold).

The NSBA thus asked Congress to add an exhaustion

requirement stating that § 504 claims could be brought

15

“only where the EHA does not protect the rights of and

provide remedies to the handicapped individual.” House

Hearing at 27 (testimony of Jean Arnold). In support of

this proposal, the NSBA cited with approval Justice

Brennan’s statement that “a plaintiff with a claim

covered by the EHA” should be required “to pursue

relief through the administrative channels established

by that Act before seeking redress in the courts” under

another law. Senate Hearing at 75 (quoting Smith v.

Robinson, 468 U.S. at 1024 (Brennan, J., dissenting)).

In response to the NSBA’s concerns, the Senate and

House both added the exhaustion clause now at issue in

essentially the same form in which it eventually was

enacted. Congress did not, as urged by the NSBA,

require exhaustion whenever the IDEA “protect[s] the

rights of and provide[s] remedies to the handicapped

individual.” House Hearing at 27. Instead, it required

exhaustion only when a plaintiff actually “seek[s] relief

that is also available under” the IDEA. 20 U.S.C.

§ 1415(l).

c. On top of all of this, Congress continued to

emphasize that the law was intended to expand parental

rights even as the exhaustion provision was added.

Conferees from the two chambers met to reconcile

various disagreements between the two bills, none of

which is material to the issue before this Court. In

subsequently introducing the conference report on the

House and Senate floors, lawmakers continued to

express their understanding of the HCPA as intended to

expand the rights of children with disabilities and their

16

parents following Smith, not to diminish them in any

way.

In describing S. 415 on the Senate floor, Sen. Weicker

stated that the bill’s purpose was “simple—to overturn

the Smith [v.] Robinson decision,” particularly with

respect to the availability of attorney’s fees for EHA

claims but also with respect to the suggestion that the

EHA could preempt rights and remedies available under

other laws. 131 Cong. Rec. 21,389. See also 131 Cong.

Rec. 21,392 (statement of Sen. Simon) (“S. 415

reestablishes the relationships between the Education of

the Handicapped Act … and other statutes protecting

the rights of handicapped children that existed prior to

the Smith versus Robinson decision.”).

Sen. Weicker observed that, as a result of Smith v.

Robinson, “handicapped children are now provided

substantially less protection against discrimination than

other vulnerable groups of people,” and his bill “would

remove these inequities by restoring equivalent

protection to handicapped children.” 131 Cong. Rec.

21,389. Sen. Kennedy added that S. 415 “clearly”

provided that “the educational rights of handicapped

children are protected from discrimination under

Section 504 of the Rehabilitation Act and other civil

rights statutes.” 131 Cong. Rec. 21,391.

As he brought the bill to the House floor, Rep.

Williams highlighted the predominant purpose of

20 U.S.C. § 1415(l): “reestablishing the viability of

Section 504 of the Rehabilitation Act of 1973 and other

statutes as separate vehicles for ensuring the rights of

handicapped children and youth.” 131 Cong. Rec. 31,370.

17

Neither he nor any member of the House suggested that

the exhaustion clause was anything more than a narrow

exception to that broad rule.

III.

The IDEA Does Not Require Exhaustion When

Exhaustion Would Be Futile.

A. When it enacted the HCPA, Congress was

operating against the backdrop of this Court’s

exhaustion jurisprudence, which has consistently

recognized a futility exception to exhaustion

requirements. See e.g., Bethesda Hosp. Ass’n v. Bowen,

485 U.S. 399, 404-05 (1988). Typically, if a statute has an

exhaustion requirement, but exhausting the procedure

required by the statute could not achieve any meaningful

result, the exhaustion requirement can be waived. See

Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 324, 327, 331

(1969).

Consistent with this backdrop, this Court noted in

Smith the consensus view that the EHA’s exhaustion

requirements came with a futility exception. See 468

U.S. at 1014 n.17. Legislative history supports the

consensus. When the EHA was originally enacted in

1975, its sponsors explained that the Act’s exhaustion

requirements “should not be required … in cases where

such exhaustion would be futile either as a legal or

practical matter.” 121 Cong. Rec. 37,416 (1975)

(statement of Sen. Williams).

So too with the post-Smith exhaustion requirements

of the HCPA. Congress incorporated the background

presumption—that exhaustion would not be required

when it would be futile—by only requiring exhaustion of

18

non-EHA claims “to the same extent as would be

required had the action been brought under” the EHA.

20 U.S.C. § 1415(l) (emphasis added). The committee

reports of both chambers of Congress reflect this fact.

The House Report acknowledged that “it is not

appropriate to require the use of [EHA procedures]”

when “it would be futile to use the due process

procedures” or when “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”). House Report at 7. The Senate

Report similarly stated that “[e]xhaustion of EHA

administrative remedies would thus be excused where

they would not be required to be exhausted under the

EHA, such as when resort to those proceedings would

be futile.” S. Rep. No. 99-112, at 15.

As Sen. Simon explained, the HCPA exhaustion

provision was intended to prevent “circumvention of the

due process procedures set out in … the Education of the

Handicapped Act.” 131 Cong. Rec. 21,392. The

exhaustion requirement thus would be inappropriate in

cases where it would “be futile to use the due process

procedures,” such as “where the hearing officers lacks

the authority to grant the relief sought.” Id. at 21,393. In

other words, when families of children with disabilities

sought remedies outside the scope of the the EHA,

exhaustion under EHA procedures was necessarily

futile because EHA hearing officers lacked authority to

grant such relief.

Amicus George Miller, then a member of the House

of Representatives, similarly affirmed that “neither [he]

19

nor others who wrote the [EHA] intended that parents

should be forced to expend valuable time and money

exhausting unreasonable or unlawful administrative

hurdles to gain for their children an education which

meets their individual needs.” 131 Cong. Rec. 31,376.

Rep. Miller elaborated that “there are certain situations

in which it is not appropriate to require the exhaustion

of EHA administrative remedies before filing a civil

lawsuit,” including where it would “be futile to use the

due process procedures (that is, where the hearing

officer lacks the authority to grant the relief sought).”

131 Cong. Rec. 31,376. See also 121 Cong. Rec. 37,416

(statement of Sen. Williams) (Exhaustion requirements

“should not be required . . . in cases where such

exhaustion would be futile either as a legal or practical

matter.”); 131 Cong. Rec. 21,393 (statement of Sen.

Simon) (It is not appropriate to require exhaustion

“where it would otherwise be futile to use the due

process procedures—for example, where the hearing

officer lacks the authority to grant the relief sought.”);

House Report at 7 (“[I]t is not appropriate to require the

use of [IDEA procedures] [when] it would be futile to use

the due process procedures.”).

B. The reason for a futility exception to the

exhaustion requirement—to avoid imposing pointless

administrative burdens on plaintiffs—is, if anything,

especially compelling in connection with the IDEA. Rep.

Pat Williams made the point explicitly in his address to

the House of Representatives on the HCPA, the statute

that added the exhaustion requirement at issue in this

case: “This Congress did not then and does not now

20

intend to see handicapped children and their parents

suffer unwarranted burdens.” See 131 Cong. Rec. 5064.

Instead of creating administrative burdens, postHCPA Congresses have encouraged efficient and

effective resolutions of IDEA disputes—resolutions that

would be discouraged if the statute’s exhaustion

requirements contained no futility exception. As

proponents of the 1997 IDEA Amendments explained,

for example, “in States where mediation is being used,

litigation has been reduced, and parents and schools

have resolved their differences amicably, making

decisions with the child’s best interest in mind.” H.R.

Rep. No. 105-95, at 106 (1997). They therefore declared

a “strong preference that mediation become the norm

for resolving disputes under IDEA.” Id. Since then,

Congress has consistently reaffirmed its desire to

expand settlement opportunities and encourage

mediation of IDEA disputes. See, e.g., H.R. Rep. No. 10877, at 85-86 (2003) (explaining that the 2004 IDEA

Amendments sought to “encourage[] the use of

mediation and voluntary binding arbitration to speed the

resolution time so that children with disabilities obtain

the needed services and education in a timely manner”);

S. Rep. No. 108-185, at 37 (2003) (explaining that the 2004

IDEA Amendments sought to “encourag[e] parties to

consider mediation as an option at earlier stages of

disagreements and disputes,” and noting that the

legislators placed “a high value on the successful use of

mediation” to resolve IDEA disputes).

21

IV.

The Court Should Construe § 1415(l) According

To Its Plain Language And Congress’s Clear

Intent.

There can be no question that § 1415(l), like the

larger bill of which it was a part, was intended to expand

the ability of children with disabilities to bring

non-IDEA claims and obtain non-IDEA remedies.

A. In the lower court proceedings, the Sixth Circuit

misconstrued the narrowly worded exhaustion

requirement to require exhaustion of claims seeking

remedies not available under the IDEA, and to require

exhaustion of claims even when exhaustion would be

futile. This construction gives § 1415(l) an effect that is

the opposite of what Congress intended. It turns a

provision meant to restore the right to bring non-IDEA

claims into one that reduces that right even more than

did Smith v. Robinson. And it construes the exhaustion

requirement in a way that is more consistent with the

NSBA’s proposed language, which Congress declined to

adopt.

Congress could have simply overruled the result of

Smith v. Robinson by making attorney’s fees available

for prevailing IDEA plaintiffs. But Congress went

further, also providing explicitly that it is improper to

construe the IDEA as limiting rights and remedies

guaranteed by other laws. Congress understood that,

fundamental as the IDEA’s guarantee of meaningful

education is for children with disabilities, it does not

represent the entire sum of their rights and remedies

vis-à-vis their schools or their education. A family with

rights guaranteed by the IDEA does not thereby shed

22

the rights and remedies guaranteed under other laws—

or the ability to enforce them outside the IDEA process.

B. The Sixth Circuit’s requirement that plaintiffs

exhaust non-IDEA claims seeking remedies not

available under the IDEA runs afoul of Congress’ intent.

Section 1415(l) was not intended to limit or reduce

the rights, procedures, or remedies available to children

with disabilities and their parents under the

Constitution or other federal laws. See 130 Cong. Rec.

20,597-98. Rather, as discussed above, Congress enacted

§ 1415(l) as a direct response to the Court’s decision in

Smith, 468 U.S. at 1013, which held that the IDEA was

the exclusive avenue through which a child with a

disability (or his parents) could challenge the adequacy

of his education. Fry, 580 U.S. at 161. Section 1415(l)

thus was enacted explicitly to “reaffirm the viability of

federal statutes like the ADA or Rehabilitation Act as

separate vehicles, no less integral than the IDEA, for

ensuring the rights of handicapped children,” while also

enacting a limited exhaustion provision. Id. (quoting

House Report at 4 (internal quotation marks omitted)).

Moreover, Congress enacted § 1415(l) with the

purpose of emphasizing the availability of “the full range

of remedies necessary to protect and defend” the rights

of children with disabilities to a free public education and

their right to be free from discrimination. See 132 Cong.

Rec. 17,608 (1986). And the plain language enacted by

Congress did just that: Congress crafted a narrow

exhaustion requirement that requires exhaustion only

when the plaintiff is “seeking relief that is also available

under [IDEA]”. 20 U.S.C. § 1415(l) (emphases added).

23

The Sixth Circuit thus was wrong to conclude that

§ 1415(l) requires exhaustion in cases like this one,

where the plaintiff seeks only relief not available under

the IDEA.

C. The Sixth Circuit’s conclusion that a plaintiff is

required to engage in further exhaustion efforts, beyond

a full settlement of his IDEA claims, similarly runs afoul

of Congress’ intent.

As discussed above, Congress intended to

incorporate a well-recognized futility exception into the

IDEA’s narrow exhaustion requirement. Congress

enacted § 1415(l) against the backdrop of its prior

enactments and this Court’s jurisprudence, which long

recognized a futility exception to statutory exhaustion

requirements. And § 1415(l)’s legislative history

confirms that Congress intended to incorporate the

widely accepted principle that exhaustion requirements

do not apply when futile. The Sixth Circuit therefore was

wrong to hold that § 1415(l) requires exhaustion where,

as here, the plaintiff already had obtained full relief

under the IDEA and was asking for relief that could not

be granted by an IDEA hearing officer.

D. Interpreting IDEA’s exhaustion provision to

effectively displace a student’s ability to seek adequate

relief would frustrate both Congress’s legislative intent

and the IDEA’s regulatory scheme. IDEA was designed

“to provide a clear and comprehensive national mandate

for the elimination of discrimination against individuals

with disabilities.” 42 U.S.C. § 12101(b)(1). And the

HCPA was enacted to enhance the ability of students

and their families to obtain relief under other federal

24

statutes in the wake of Smith v. Robinson. As this case

makes clear, the Sixth Circuit’s approach does the

opposite. It makes it harder for families of students with

FAPEs under the IDEA to obtain all the remedies

provided to them under other federal statutes. And as

this case illustrates, it in some cases effectively

forecloses families from getting the full relief

guaranteed to them under federal law. This is not what

Congress intended or enacted.

The Sixth Circuit’s elimination of the futility

exception to the exhaustion requirement also

unnecessarily complicates proceedings for students and

families. It forces parents into a Catch-22, having to

decide between accepting an IDEA settlement or

forfeiting their statutory rights and remedies under

other disability laws. And such an interpretation of the

statute would render the efficiency-driven impetus

behind exhaustion requirements moot by forcing

parents to engage in lengthy and costly administrative

proceedings, even where a school would gladly

remediate an IDEA violation. As discussed above,

Congress intended exactly the opposite, as it repeatedly

and consistently enacted provisions that encouraged

early and efficient settlements of IDEA claims.

Congress noted that it would not be “appropriate” to

require the exhaustion of remedies for non-IDEA suits

when “it would otherwise be futile to use … due process

procedures—for example, where the hearing officer

lacks the authority to grant the relief sought.” 131 Cong.

Rec. 21,393 (statement of Sen. Simon). In this case,

Petitioner could not obtain the relief he sought under the

25

IDEA, and Petitioner settled his IDEA claim and

obtained full relief under that statute. Further IDEA

proceedings therefore would have been futile, and

Congress did not intend to require them.

E. Disability-specific legal protections, like the ADA

and Rehabilitation Act, often exceed those rights

guaranteed by the IDEA. As individuals with

disabilities integrate into every aspect of society, our

laws now explicitly recognize their right to an equal

opportunity to participate in the public sphere—

including, but not limited to, in educational settings.

Most notably, Congress enacted the landmark

Americans with Disabilities Act of 1990. That law, along

with its implementing regulations, sets the ambitious

goal of providing full equality. See, e.g., 42 U.S.C. § 12132

(No qualified individual with a disability may be “denied

the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any

such entity.”).

As this case illustrates, children with disabilities

have available remedies under the ADA or related laws

that often exceed the remedies available under the

IDEA. Congress did not mean for the IDEA to leave

children with disabilities worse off, by preempting their

general rights and remedies, or by imposing procedural

obstacles that would not otherwise apply. Congress

therefore meant what it said in § 1415(l): its exhaustion

requirement applies only when a plaintiff is seeking the

same relief that is also available to him or her under the

IDEA.

26

CONCLUSION

For the foregoing reasons, this Court should reverse

the judgment below.

Respectfully submitted,

DAVID A. STRAUSS

SARAH M. KONSKY

Counsel of Record

JENNER & BLOCK

SUPREME COURT AND

APPELLATE CLINIC AT

THE UNIVERSITY OF

CHICAGO LAW SCHOOL

1111 E. 60th Street

Chicago, IL 60637

konsky@uchicago.edu

(773) 834-3190

MATTHEW S. HELLMAN

JENNER & BLOCK LLP

1099 New York Avenue NW

Washington, DC 20001

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