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,

V.

Petitioner,

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 AASA, THE SCHOOL SUPERINTENDENTS

ASSOCIATION, THE COUNCIL OF ADMINISTRATORS

OF SPECIAL EDUCATION, THE AMERICAN PHYSICAL THERAPY ASSOCIATION, THE ASSOCIATION

OF SCHOOL BUSINESS OFFICIALS INTERNATIONAL, THE NATIONAL ASSOCIATION OF PUPIL

SERVICES ADMINISTRATORS, AND THE NATIONAL

ASSOCIATION OF SCHOOL NURSES AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

_________

CHRISTOPHER B. GILBERT

Counsel of Record

PAIGE MARTIN

THOMPSON & HORTON LLP

3200 Southwest Freeway, Suite 2000

Houston, Texas 77027

(713) 554-6744

cgilbert@thompsonhorton.com

ii

TABLE OF CONTENTS

Page

I.

Interest of Amici Curiae .................................... 1

II.

Introduction and Summary of the Argument ... 4

III. Argument ............................................................ 5

A. “Timothy” .................................................... 7

B. Allowing the IDEA’s exhaustion requirements to be avoided simply by requesting

monetary damages in a non-IDEA lawsuit would significantly weaken the collaborative benefits of the IDEA. ................ 8

C. Allowing the IDEA’s exhaustion requirements to be avoided simply by requesting

monetary damages in a non-IDEA lawsuit would create a de facto compensatory damage component for IDEA claims.

................................................................... 13

D. The IDEA’s futility exception should be

limited to situations where parents do

not voluntarily elect to pursue monetary

damages. ................................................... 16

E. Parents who settle their IDEA claims

during the administrative process cannot be said to have properly exhausted

their administrative remedies, and

should be barred from bringing educational service-related claims in subsequent lawsuits. ........................................ 21

IV. Conclusion ........................................................ 27

iii

TABLE OF AUTHORITIES

Federal Cases:

A.F. ex rel. Christine B. v. Española Public

Schools, 801 F.3d 1245 (10th Cir. 2015) .............. 22

Ahearn v. East Stroudsburg Area Sch. Dist.,

848 Fed.Appx. 75 (3d Cir. 2021) ......................... 18

Covington v. Knox Cnty. Sch. Sys., 205 F.3d

912 (6th Cir. 2000) ........................................ 17, 18

Crocker v. Tenn. Secondary Sch. Athletic Ass'n,

873 F.2d 933 (6th Cir. 1989 ................................ )22

D.R. by M.R. v. E. Brunswick Bd. of Educ., 109

F.3d 896 (3d Cir. 1997) ........................................ 25

Diaz-Fonseca v. Puerto Rico, 451 F.3d 13 (1st

Cir. 2006) ............................................................. 14

Ehrheart v. Verizon Wireless, 609 F.3d 590 (3d

Cir. 2010) .............................................................. 25

Endrew F. ex rel. Joseph F. v. Douglas Cnty.

Sch. Dist. RE-1, 137 S. Ct. 988 (2017) ............ 9, 10

Estate of D.B. v. Thousand Islands Cent. Sch.

Dist., 169 F. Supp. 3d 320 (N.D.N.Y. 2016)... 23, 24

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230

(2009) ................................................... 9, 10, 11, 17

Fry v. Napoleon Cmty. Sch., 580 U.S. 154, 137

S.Ct. 743 (2017) ............................................. 14, 16

Grogan v. Garner, 806 F.2d 829 (8th Cir.1986) ...... 17

iv

H.B. and T.B. v. Byram Hills Cent. Sch. Dist.,

648 F. App'x 122 (2d Cir. 2016) ........................... 23

Hoeft v. Tucson Unified Sch. Dist., 967 F.2d

1298 (9th Cir. 1992) ...................................... 19, 22

Homeland Training Ctr., LLC v. Summit Point

Auto. Rsch. Ctr., 594 F.3d 285 (4th Cir.

2010) .................................................................... 16

Honig v. Doe, 484 U.S. 305, 327, 108 S. Ct. 592

(1988) .................................................................... 23

Logan v. Morris Jeff Cmty. Sch., 2021 WL

4451980 (5th Cir. 2021) ....................................... 18

M.M. v. Lafayette Sch. Dist., 681 F.3d 1082 (9th

Cir. 2012). ............................................................. 23

Marc V. v. N.E. Indep. Sch. Dist., 455 F. Supp.

2d 577 (W.D. Tex. 2006), aff’d, 242

Fed.Appx. 271 (5th Cir. 2007) .............................. 19

McKart v. United States, 395 U.S. 185 (1969)......... 19

McMillen v. New Caney Indep. Sch. Dist., 939

F.3d. 640 (5th Cir. 2019). ..................................... 18

Moore v. Chilton County Bd. of Educ., 936 F.

Supp. 2d 1300 (M.D. Ala. 2013) ........................... 24

Morton v. Bossier Parish Sch. Bd., 2013 WL

696725 (W.D. La. 2013) ........................................ 24

Myers v. Bethlehem Shipbuilding Corp., 303

U.S. 41 (1938) ....................................................... 20

Papania-Jones v. Dupree, 275 Fed.Appx. 301

(5th Cir. 2008) ...................................................... 19

v

Perez v. Sturgis Pub. Sch., 3 F.4th 236 (6th

Cir. 2021) .............................................. 3, 17, 18, 21

Polera v. Bd. of Educ. of Newburgh Enlarged

City Sch. Dist., 288 F.3d 478 (2d Cir. 2002) . 14, 18

PVI, Inc. v. Ratiopharm GmbH, 253 F.3d 320

(8th Cir. 2001) ..................................................... 17

Reid v. Prince George’s County Bd. of Educ., 60

F. Supp. 3d 601 (D. Md. 2014) ............................. 23

Shaffer ex rel. Schaffer v. Weast, 546 U.S. 49

(2005) .................................................................. 5, 6

Taylor v. Altoona Area Sch. Dist., 737 F. Supp.

2d 474 (W.D. Pa. 2010). ........................................ 24

United States v. Oregon Lumber Co., 260 U.S.

290 (1922) ............................................................ 16

W.K. and P.K. v. Sea Isle City Board of Education, 2007 WL 433323 (D.N.J. 2007) ................... 22

Woodford v. Ngo, 548 U.S. 81 (2006) ..................... 20

State Cases:

Texas Advocates Supporting Kids with Disabilities v. Texas Educ. Agency, 112 S.W.3d

234, 236 (Tex. App.—Austin 2003, no pet.) ........ 22

Statutes and Regulations:

20 U.S.C. § 1400 ............................................... passim

20 U.S.C. § 1414 .................................................. 5, 21

vi

20 U.S.C. § 1415 ........................................... 6, 18, 20

34 C.F.R. 300.116 .................................................... 14

34 C.F.R. 300.506. ............................................. 10, 14

34 C.F.R. 300.507 ................................................ 9, 10

34 C.F.R. 300.508 .................................................... 10

34 C.F.R. 300.510 ............................................... 10, 14

34 C.F.R. 300.511. .................................................... 14

34 C.F.R. 300.514 ..................................................... 22

71 Fed. Reg. 46,599 (2006). ..................................... 11

Other Materials:

“Abraham Lincoln's Notes for a Law Lecture”,

found at https://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm

(visited Dec 8, 2022) .............................................. 5

Dan B. Dobbs, Handbook on the Law of Remedies § 1.5 at 14 (1973) ........................................ 17

S.Rep. No. 105–17, p. 3 (1997) ................................... 9

1

I.

INTEREST OF AMICI CURIAE1

AASA, The School Superintendents Association (“AASA”), founded in 1865, is the professional

organization for over 13,000 educational leaders in

the United States and throughout the world. AASA

members range from chief executive officers, superintendents and senior level school administrators to

cabinet members, professors and aspiring school system leaders. Throughout its more than 150 years,

AASA has advocated for the highest quality public education for all students and provided programing to

develop and support school system leaders. AASA

members advance the goals of public education and

champion children’s causes in their districts and nationwide.

The Council of Administrators of Special Education (“CASE”), a division of the Council for Exceptional Children, is an international nonprofit professional organization advocating for and providing

leadership and professional development to over 5,000

administrators who work on behalf of students with

disabilities and their families in public and private

school systems and institutions of higher education.

CASE members are committed to the highest standards of access and inclusion and to enhancing the

worth, dignity, and educational achievement of all

students in school districts across the country.

1 All parties have consented to the filing of this amicus

brief. No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than

amici curiae and their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2

The American Physical Therapy Association

(“APTA”) is an individual membership professional

organization representing 100,000 member physical

therapists, physical therapist assistants, and students of physical therapy. Physical therapists play a

unique role in society in prevention, wellness, fitness,

health promotion, and management of disease and

disability for individuals across the age span. Physical

therapists are often a member of a child’s IEP team

and play an important role in helping children access

their free appropriate public education. APTA is committed to ensuring that parents, school staff, and the

student actively work together to evaluate and implement the student’s educational plan and attempt to

resolve any disagreements before seeking litigation.

The Association of School Business Officials

International (“ASBO”) provides programs, resources, services, and a global network to school business professionals who are the finance and operations

decision makers in school systems. ASBO members

manage school budgeting, purchasing, facility operations and maintenance, human resources, technology,

transportation, food service, healthcare, and other areas of education administration and operations.

ASBO promotes the highest standards of school business management, professional growth, and the effective use of educational resources.

The National Association of Pupil Services

Administrators (“NAPSA”) is a national association of student services administrators with members

across the nation who collaborate, coordinate and

communicate with advocates, parents and students to

provide appropriate services for all students, including students with disabilities. NAPSA is committed to

3

the cultivation of leadership, advocacy, and professional development in the field of pupil services. Pupil

services administrators must possess a broad

knowledge of many fields within student services, including but not limited to special education, psychology, social work, school health, school counseling, and

other related services.

The National Association of School Nurses

(“NASN”) is the only national association solely dedicated to optimizing student health and learning by

advancing the specialty practice of school nursing.

With over 17,000 members in every part of the country and affiliate organizations in 48 states, the District of Columbia, and overseas, NASN has extensive

reach at the national, state and local level. Located in

Silver Spring, MD, NASN is a 501(c)(3) public charity.

NASN’s interest in this case comes from the school

nurse’s unique knowledge and experience that is essential to assess and identify student health-related

barriers to learning and the accommodations necessary to provide students proper access to education.

School nurses work collaboratively with other team

members to identify, evaluate, and develop plans for

students in need of educational accommodations and

special education services.

Between them, Amici represent many of the school

professionals who are instrumental in the daily education of students with disabilities. Amici are concerned that any weakening of the exhaustion requirement of the Individuals with Disabilities Education

Act, 20 U.S.C. § 1400 et seq. (“IDEA”) that would result from the reversal of the decision of the Sixth Circuit below (Perez v. Sturgis Pub. Sch., 3 F.4th 236 (6th

Cir. 2021)) would cause irreparable damage to the

4

cooperative working relationship between parents

and schools that is the linchpin of the IDEA.

Based on the foregoing, Amici submit that the U.S.

Court of Appeals for the Sixth Circuit (“Sixth Circuit”)

correctly interpreted the relevant portions of the

IDEA, and urge the Court to uphold the decision below.

II.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Sound practical and policy considerations—aimed

at both protecting the interests of children and at promoting judicial efficiency—undergird Congress’s decision to extend IDEA’s exhaustion requirement beyond

claims that directly invoke the IDEA, to any claim

which seeks relief that would be available under the

IDEA, including those brought under Section 504 and

the ADA. The language used by Congress evinces its

desire to prevent artful pleading by plaintiffs from undermining these important considerations. A resolute

exhaustion requirement supports the carefully

crafted, collaborative framework Congress created for

students with disabilities, parents, and school districts to develop and implement a comprehensive and

individualized education program for a child with a

disability. Weakening the exhaustion requirement will

undermine the collaborative nature of the IDEA process,

and will shift the parties’ focus to money rather than the

student’s education needs, will waste money on litigation that could more effectively be spent on students

themselves, and will discourage settlements by making

them more expensive.

5

III.

ARGUMENT

“Discourage litigation. Persuade your neighbor

to compromise whenever you can.”

- President Abraham Lincoln2

Litigation is, by its very nature, confrontational: it

relies on an adversarial process, highlighted by the

right to cross examine hostile witnesses, to attempt to

resolve disputes in a manner that in most cases produces someone who wins and someone who loses. Educating children, however, should never be about winning or losing. When describing the IDEA, Justice

O’Connor declared, “The core of the statute…is the cooperative process that it establishes between parents

and schools.” Shaffer ex rel. Schaffer v. Weast, 546

U.S. 49, 53 (2005). To explain why the burden of proof

in IDEA cases should be on the party seeking relief,

which is usually parents, she noted:

Parents and guardians play a significant

role in the IEP process. They must be informed about and consent to evaluations

of their child under the Act. § 1414(c)(3).

Parents are included as members of “IEP

teams.” § 1414(d)(1)(B). They have the

right to examine any records relating to

their child, and to obtain an “independent

2 From “Abraham Lincoln's Notes for a Law Lecture”, found at

https://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm (visited Dec 8, 2022).

6

educational evaluation of the[ir] child.”

§ 1415(b)(1). They must be given written

prior notice of any changes in an IEP,

§ 1415(b)(3), and be notified in writing of

the procedural safeguards available to

them under the Act, § 1415(d)(1). If parents believe that an IEP is not appropriate, they may seek an administrative “impartial due process hearing.” § 1415(f).

Id. at 53. So not only does the IDEA provide for an

administrative hearing, but it also contains numerous

provisions that encourage collaboration well before

the parties even get to a hearing.

The School Superintendents Association, the

Council of Administrators for Special Education, the

American Physical Therapy Association, the Association of School Business Officials International, the

National Association of Pupil Services Administrators, and the National Association of School Nurses,

whose members are the school employees who –

among many other duties – are tasked by the IDEA

with collaborating with parents to ensure that children with disabilities receive a quality public education, file this Brief in support of Respondents Sturgis

Public Schools and Sturgis Public Schools Board of

Education, to emphasize their belief that a reversal of

the decision below (or, more accurately, the adoption

of the position taken by Petitioner in this appeal)

would irreparably harm the IDEA’s administrative

exhaustion requirement that is the fundamental legal

underpinning of the collaborative process.

7

A. “Timothy”

While the facts in the underlying case are sympathetic, Amici – whose members are the professional

employees who work daily with children with disabilities all across the country – believe that the situation

considered by the Sixth Circuit below is an outlier. In

a hypothetical but more common scenario, a school

district in Texas was served with a lawsuit filed by

parents whose 15-year-old child with autism (“Timothy”) had not been enrolled in the district since 2018.

The complaint stated that the parents had withdrawn

Timothy from the district four years earlier, because

they believed the school had failed to offer Timothy a

free appropriate public education (“FAPE”). The lawsuit asserted claims under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act

(“ADA”), and sought compensatory damages for emotional distress and reimbursement for four years of

Timothy’s private school tuition. The lawsuit also asserted a claim for disability discrimination under the

Equal Protection Clause of the Fourteenth Amendment against several individual defendants, including

Timothy’s teacher.

The district’s special education director was

shocked to receive a lawsuit about a student she had

not seen in years. She pulled the student’s file from

2018 out of storage and noticed that rather than meet

with school administrators and teachers in 2018 to

discuss their concerns with Timothy’s IEP, the parents had withdrawn their child and unilaterally

placed him in a private school that they thought could

offer their son with autism a better educational program, but which the district knew from past experience was ill-equipped to educate students with

8

autism. She could not find any proof that the parents

had made any requests for meetings or information

that had been denied by the district.

A year into litigation, the district received a settlement offer from the parents’ attorney demanding over

$300,000 in reimbursement for the student’s private

school tuition, along with a demand that the district

continue to fund the student’s placement at the private school until graduation. The case eventually settled after mediation, with the school district agreeing

to pay $150,000, plus $50,000 in attorney’s fees.

To this day, the school district does not know what

the money went to. Had the parents followed the

IDEA’s exhaustion requirements and requested mediation or a resolution meeting in 2018, educational services could have been agreed on then, at potentially a

fraction of the cost to the school district – and Timothy

would have received his needed services then, and not

years later when the parents could afford to pay for

them with settlement funds. As it stands, whether

Timothy ever received a proper education at the private school designed to address his needs as a student

with autism remains a mystery.

B. Allowing the IDEA’s exhaustion requirements to be avoided simply by requesting

monetary damages in a non-IDEA lawsuit

would significantly weaken the collaborative

benefits of the IDEA.

If Timothy’s parents were able to skip exhausting

administrative remedies through the available due

process hearing simply by asking for monetary damages in a subsequent lawsuit, this would effectively

render the exhaustion requirement meaningless, and

9

reduce the chance that the parties would be able to

work together successfully in the future. Disputes

arise daily in public school districts across the country

over how to educate students with disabilities, and the

IDEA provides the opportunity for a parent or a public

agency to file a complaint with respect to any matter

relating to the identification, evaluation, or educational placement of the child, or the provision of FAPE

to the child. 34 C.F.R. 300.507(a). This includes

whether the school misidentified a student’s disability, whether the school prevented a parent from actively participating in the IEP process, or whether the

IEP provided educational benefits to the child. Using

litigation to resolve disputes over these kinds of educational services is akin to using a sledge hammer to

perform brain surgery, instead of the scalpel needed

for such delicate work.

In 1997, Congress amended the IDEA, with the

specific intention “to place greater emphasis on improving student performance and ensuring that children with disabilities receive a quality public education.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230,

239 (2009) (citing S.Rep. No. 105–17, p. 3 (1997)). As

the IDEA and its regulations have further developed,

students, parents, special education administrators,

teachers, and other educational experts work together

to develop an individualized education program

(“IEP”) that is tailored to meet the unique needs of

children with disabilities. The key to this collaboration is ongoing communication between parents, educators, and other experts who have the training and

knowledge to create an IEP that is intended to allow

students with disabilities to be educated with non-disabled peers as much as possible. See Endrew F. ex rel.

10

Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct.

988, 999 (2017) (“The Act contemplates that this factintensive exercise will be informed not only by the expertise of school officials, but also by the input of the

child's parents or guardians.”).

If the parents and the school cannot agree on a

proper IEP using this collaborative team approach,

the IDEA provides for an administrative hearing process with specified timelines as a means to resolve any

disagreements.3 These procedures are designed to

promote informal and early resolution to ensure that

the child’s education experience is not harmed by a

lengthy adjudicative process. Within fifteen days of

receiving notice of the due process complaint, the parties are required to engage in a “resolution meeting,”

to discuss their issues and give the school an opportunity to resolve the dispute that is the basis for the

due process complaint.4 In the alternative, rules exist

to provide for a full mediation, with a qualified mediator who is “knowledgeable in laws and regulations

relating to the provision of special education and related services.”5

If a parent’s complaint cannot be resolved despite

these informal efforts, the parent may then present

evidence and make arguments to a specially trained

hearing officer with broad authority to grant relief related to a child’s educational program. A hearing officer may grant relief in the form of orders for future

conduct, reimbursement orders, or awards of compensatory education. See Forest Grove Sch. Dist. v. T.A.,

3 See 34 C.F.R. 300.506-508, 300.510-511.

4 See 34 C.F.R. 300.510.

5 See 34 C.F.R. 300.506.

11

557 U.S. 230, 240 (2009); 71 Fed. Reg. 46,599 (2006).

Although hearing officers are not authorized to award

monetary damages under the IDEA, they have authority to grant a wide variety of education services to

students that might not be available in a Section 504

or ADA lawsuit.

The evidence strongly suggests that collaboration

works: most IDEA claims brought against school districts are resolved before the conclusion of a due process hearing. A report prepared by the Center for Appropriate Dispute Resolution in Special Education

(“CADRE” and the “CADRE Report”) shows that during the 2020-2021 school year, 9,790 due process complaints were resolved without a hearing, and only

1,293 fully adjudicated hearings were held.6 A review

of data from the previous 10 years shows that, between 2010 and 2018, over half of the due process complaints filed were resolved without a hearing, and the

number of fully adjudicated hearings each year remained fairly constant, between 1,993 and 2,813.7

Conversely, litigation is by its very nature adversarial, and is inherently inefficient as a speedy dispute resolution mechanism, especially when the

6 See Page 10 of the “IDEA Dispute Resolution Data Summary

for U.S. and Outlying Areas: 2010-11 to 2020-2021,” found at

https://www.cadreworks.org/resources/cadre-materials/2020-21dr-data-summary-national. CADRE collects and reports on the

dispute resolution data that all states are required to report to

the U.S. Department of Education Office of Special Education

Programs.

7 Experience of Amici members suggests that the increase in due

process complaints filed and decrease in completed hearings

from the 2019-2020 school year forward is likely due to the impact of the COVID-19 pandemic on the operations of the public

school system.

12

dispute involves the education of a child with a disability. If the Sixth Circuit’s decision is overturned, it

will give parents an expedited path to litigation in

civil court and defeat the IDEA’s core purpose of collaboration and early dispute resolution. It will embroil

students, parents, and school districts in lengthy and

expensive court proceedings, depleting district local

funds that could be used to serve the needs of students

with and without disabilities alike.

The adversarial nature of litigation also is counterproductive to encouraging ongoing collaborative working relationships between parents and the school officials they have just sued. Timothy’s parents chose

above to assert equal protection claims against Timothy’s teacher in her individual capacity, and it is unfortunately not uncommon for families suing school

districts to bring claims against the individual school

officials who are simply trying to educate the student.

Amici’s members not only must by necessity work

daily with the student and his or her parents, but the

working relationship must sometimes last for years.

Special education students do not always progress

from one classroom to another at the end of each traditional “grade,” and some special education specialists – such as specialized instructional support personnel

like

school

nurses,

speech-language

pathologists, physical therapists, school psychologists

and even teachers – spend multiple years working

with the same students. An adversarial litigation process that encourages plaintiffs to file claims directly

against individual defendants can destroy critical

working relationships.

This is not to naively suggest that the due process

hearing itself cannot become adversarial and

13

confrontational. However, the focus of the hearing

should be on the student’s education, and not necessarily on the specific acts of individual employees.

There are no “Individual Defendants” in due process

hearings.

In Timothy’s case, had the parents reached out to

the school district back in 2018 when they claimed the

school was not providing a FAPE to their child, the

district would have had the opportunity to collaborate

with the parents to attempt to resolve their issues

with Timothy’s IEP, as the IDEA intended. School resources, both financial and in staff time, could have

been much better spent on the provision of services to

all students in the school district. The parties would

also have had the opportunity, before Timothy left the

district, to discuss the viability of the education program for students with autism at the private school in

question. While the parents might have disagreed if

school officials had said the private school’s program

was not appropriate for students with autism, the parents would have at least had more information and

been in a better position to make an informed decision

about the education of their child.

C. Allowing the IDEA’s exhaustion requirements to be avoided simply by requesting

monetary damages in a non-IDEA lawsuit

would create a de facto compensatory damage component for IDEA claims.

Overturning the Sixth Circuit’s decision would

open the floodgates for parents seeking monetary gain

for claims that most likely could have been resolved

using the IDEA’s collaborative processes of IEP

14

meetings,8 resolution sessions,9 mediations,10 or due

process hearings.11 The IDEA’s goal is to resolve educational disputes using educational means. This

Court acknowledged as much in Fry v. Napoleon

Cmty. Sch., 580 U.S. 154, 137 S.Ct. 743 (2017), when

it stressed that the IDEA’s exhaustion requirement

applies when the gravamen of a plaintiff's complaint

is for the denial of a student’s appropriate education.

Specifically, this Court stated that if a lawsuit, based

on the substance of the complaint, seeks redress for a

school’s failure to provide a free appropriate public education, exhaustion of the administrative procedures

of the IDEA is required, even if the lawsuit is brought

under a statute other than the IDEA. Id. at 754–55.

Allowing parents to skip the administrative process by asking for monetary damages under Section

504 or the ADA is the functional equivalent of providing a compensatory damage remedy under the IDEA.

Congress deliberately chose not to provide for compensatory damages under the IDEA. See, e.g., Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 37 (1st Cir. 2006) (“In

choosing not to authorize tort-like monetary damages

or punitive damages in cases under the IDEA, Congress made a balanced judgment that such damages

would be an unjustified remedy for this statutorily

created cause of action.”); Polera v. Bd. of Educ. of

Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486

(2d Cir. 2002) (“The purpose of the IDEA is to provide

educational services, not compensation for personal

injury, and a damages remedy – as contrasted with

8 See 34 C.F.R. 300.116(a)(1).

9 See 34 C.F.R. 300.510.

10 See 34 C.F.R. 300.506.

11 See 34 C.F.R. 300.511.

15

reimbursement of expenses – is fundamentally inconsistent with this goal.”) Encouraging parents to prioritize money over educational services in essence creates a compensatory damage aspect to the IDEA, in

contravention of Congress’s clear intent to focus on

the education of the child.

Allowing parents’ attorneys to incorporate monetary relief for future Section 504 and ADA claims into

their IDEA settlement demands would in turn force

school districts to increase their settlement offers to

pay to waive such claims in any settlement agreement. This would exponentially increase the cost of

resolving IDEA claims in mediation. In Timothy’s

case, the school was forced to pay hundreds of thousands of dollars just to resolve the litigation, with no

guarantee that it would improve Timothy’s education.

If parents can go straight to federal court simply

by demanding monetary damages under Section 504

or the ADA, the parties would be denied the opportunity to have a trained special education hearing officer examine the merits of the parents’ education-focused IDEA claims, to give them some indication of

whether their claims are meritorious. Any reviewing

court would be deprived of the creation of a record of

the highly technical and often expansive evidence typical in such disputes. The Sixth Circuit’s decision

must be upheld to prevent parents from stifling the

IDEA’s collaborative nature and forcing school districts to spend hundreds of thousands of dollars defending these complaints, regardless of whether the

complaints have merit.

16

D. The IDEA’s futility exception should be limited to situations where parents do not voluntarily elect to pursue monetary damages.

Pursuant to Fry, parents who truly believe that

their child has a pure monetary claim for damages for

disability discrimination unrelated to their educational services may file lawsuits under statutes such

as Section 504 or the ADA. See Fry, 137 S. Ct. at 743

(“But if, in a suit brought under a different statute,

the remedy sought is not for the denial of a FAPE,

then exhaustion of the IDEA's procedures is not required.”) Furthermore, nothing in the IDEA prevents

students with disabilities from seeking relief under

other disability-related laws once the student has

properly exhausted their IDEA remedies at the administrative level. The exhaustion requirement therefore functions effectively as an election of remedies

provision, allowing parents to choose which remedies

they focus on initially (and thus which path they

take12), while at the same time emphasizing the education of the child.

School districts should not be forced to have to defend themselves twice for the same underlying dispute. As Justice Sutherland once said, “[t]he doctrine

of election of remedies … has for its underlying basis

the maxim which forbids that one shall be twice vexed

for one and the same cause.” United States v. Oregon

Lumber Co., 260 U.S. 290, 301 (1922). As the Eighth

Circuit has noted:

12 See Homeland Training Ctr., LLC v. Summit Point Auto. Rsch.

Ctr., 594 F.3d 285, 293 (4th Cir. 2010) (“Election of remedies doctrine also has a sequencing component.”)

17

Election of remedies is, in the words of

one commentator, ‘[the] legal version of

the idea that [a plaintiff may not] have

his cake and eat it too.’ ... A plaintiff

must elect among remedies when he

has available inconsistent remedies for

the redress of a single right,”

PVI, Inc. v. Ratiopharm GmbH, 253 F.3d 320, 327 (8th

Cir. 2001) (quoting Grogan v. Garner, 806 F.2d 829,

839 (8th Cir.1986) and Dan B. Dobbs, Handbook on

the Law of Remedies § 1.5 at 14 (1973)). While Amici

are not suggesting that educational services and monetary damages are completely inconsistent for these

kinds of disputes, the IDEA makes it clear that the

parties’ focus should be “on improving student performance and ensuring that children with disabilities receive a quality public education.” Forest Grove, 557

U.S. at 239.

As in most civil rights litigation, context matters

under the IDEA: the futility exception to exhaustion

should be limited to situations where the surrounding

circumstances clearly show genuine (actual) futility,

and not situations where futility has been artificially

created by the voluntary choice of the parents. As the

lower court stated, when parents seek relief for the

denial of FAPE, the hearing officer’s inability to

award money damages cannot be a source of futility.

Perez v. Sturgis Pub. Sch., 3 F.4th 236, 244 (6th Cir.

2021). A lawsuit that seeks relief for the denial of an

appropriate education is subject to section 1415(l),

even if it requests a remedy the IDEA does not allow.

Id. at 241 (citing Covington v. Knox Cnty. Sch. Sys.,

205 F.3d 912, 916–17 (6th Cir. 2000)). Most other

18

circuits agree. See Covington, 205 F.3d at 916–17 (collecting cases); McMillen v. New Caney Indep. Sch.

Dist., 939 F.3d. 640, 647–48 (5th Cir. 2019).

Multiple circuits have held that, “[d]espite the

plausible ‘textualist case that a claim does not “seek

relief that is also available” under the IDEA if the

plaintiff cannot seek the same remedy under the

IDEA,’. . . the meaning of ‘relief available’ under the

IDEA depends on the ‘conduct the plaintiff complains

about,’ not the type of remedy that the plaintiff desires.” Logan v. Morris Jeff Cmty. Sch., 2021 WL

4451980, at *3 (5th Cir. 2021) (quoting McMillen, 939

at 648.); Ahearn v. East Stroudsburg Area Sch. Dist.,

848 Fed.Appx. 75, 78 (3d Cir. 2021) (holding that it is

“of no moment” that only monetary damages are

sought). “Allowing a plaintiff complaining about the

denial of a [FAPE] to avoid exhaustion ‘merely by

tacking on a request for money damages’ would subvert the procedures Congress designed for prompt resolution of these disputes.” McMillen, 939 F.3d at 648

(quoting Polera, 288 F.3d at 487–88).

Given section 1415(l)’s focus on exhaustion of the

IDEA's collaborative procedures, we know that “Congress meant to require procedural exhaustion regardless of the fit between [Perez's] prayer for relief and

the administrative remedies possible.” Perez, 3 F.4th

at 244; see 20 U.S.C. § 1415(l). But if a request for

damages could excuse the failure to exhaust, then any

student seeking money damages could skip the administrative process. Section 1415(l) would have no

force, as the Sixth Circuit explained.

Although Petitioner in this case downplays the

benefits of electing to first pursue exhaustion under

19

the IDEA, administrative exhaustion serves a number

of important purposes:

Exhaustion of the administrative process allows for the exercise of discretion

and educational expertise by state and

local agencies, affords full exploration of

technical educational issues, furthers development of a complete factual record,

and promotes 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) (citing McKart v. United States,

395 U.S. 185, 193-195 (1969)); see also Marc V. v. N.E.

Indep. Sch. Dist., 455 F. Supp. 2d 577, 592 (W.D. Tex.

2006), aff’d, 242 Fed.Appx. 271 (5th Cir. 2007) (exhaustion “allows deference to agency expertise in resolving educational matters; it gives the agency a first

opportunity to correct errors; it presents courts with a

more fully developed record; and it prevents parties

from deliberately disregarding the statute's comprehensive procedures and remedies.”); Papania-Jones v.

Dupree, 275 Fed.Appx. 301, 303-04 (5th Cir. 2008)

(per curium) (“By failing to exhaust the IDEA's administrative remedies, the Jones family did not give

the State an appropriate opportunity to resolve their

complaints prior to filing suit against the State.”).

This view of the benefits of exhaustion under the

IDEA is consistent with the Supreme Court’s view of

administrative exhaustion generally:

20

Exhaustion of administrative remedies

required by 20 U.S.C. § 1415(l) serves

two main purposes. First, exhaustion

protects “administrative agency authority.” Exhaustion gives an agency “an opportunity to correct its own mistakes

with respect to the programs it administers before it is hauled into federal

court,” and it discourages “disregard of

[the agency’s] procedures.” Second, exhaustion promotes efficiency. Claims

generally can be resolved much more

quickly and economically in proceedings

before an agency than in litigation in federal court.

Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50–

51 (1938)).

As discussed above, the CADRE Report shows that

the exhaustion requirement has been very successful

in helping parents and schools resolve their disputes

without having to go all the way through a full due

process hearing. During the 2020-2021 school year,

out of the 23,567 due process complaints filed, 17,215

resolution meetings were held, and 4,796 mediations

occurred, leading to 9,790 complaints (42%) being resolved without a hearing.13 In the eight school years

between 2010 and 2018, 60% or more of all due process

complaints were resolved each year without a

13 https://www.cadreworks.org/sites/default/files/re-

sources/2022%20National%20IDEA%20Dispute%20Resolution%20Data%20Summary%20FINAL_accessible.pdf (page 4).

21

hearing, with some years over 70%.14 A system that

encourages parents to first resolve disputes over their

children’s educational needs before pursuing monetary damages satisfies the educational policy goals of

the IDEA.

E. Parents who settle their IDEA claims during

the administrative process cannot be said to

have properly exhausted their administrative remedies, and should be barred from

bringing educational service-related claims

in subsequent lawsuits.

In the case below, the parents asserted that “[a]s

part of the settlement, the school agreed to pay for Perez to attend the Michigan School for the Deaf, for any

‘post-secondary compensatory education,’ and for sign

language instruction for Perez and his family. It also

paid the family's attorney's fees.” Perez, 3 F.4th at

239. They should be excused from proceeding all the

way through the hearing, they argued, because they

had “obtained all the educational relief the IDEA

[could] provide” the student when he settled his claim.

Id. at 242. The IDEA’s administrative scheme, however, actually affords students with disabilities

greater protections by promoting parental involvement,15 providing strict timelines for school districts

to respond to parental concerns,16 and ensuring that

“[f]ederal courts—generalists with no experience in

the educational needs of handicapped students—are

given the benefit of expert factfinding by a state

14 Id.

See, e.g., 20 U.S.C. § 1414(d)(1)(B)(i) (parents are required

member of IEP committee).

16 See, e.g., 20 U.S.C. § 1414(a)(1)(C)(i)(I) (setting timeline to respond to parent request for evaluation).

15

22

agency devoted to this very purpose.” Hoeft, 967 F.2d

at 1303 (quoting Crocker v. Tenn. Secondary Sch. Athletic Ass'n, 873 F.2d 933, 935 (6th Cir. 1989)).

If parents can obtain the educational services they

desire through settlement of the due process proceedings, and then turn around and file a lawsuit in court

for monetary damages, that could extend the adversarial proceedings anywhere from one to three more

years. School districts will lose their incentive to offer

those educational services to the student – and it will

be the student who suffers. As noted by one Texas

court, the administrative system ensures tight timelines because “the longer it takes to resolve disputes

through a due process hearing and subsequent suit for

judicial review, the greater the potential damages to

a child's education.” Texas Advocates Supporting Kids

with Disabilities v. Texas Educ. Agency, 112 S.W.3d

234, 236 (Tex. App.—Austin 2003, no pet.).

Under the IDEA, only a party who is “aggrieved

by” a final administrative decision has the right to

bring a lawsuit about a student’s special education

services. 34 C.F.R. 300.514(b). After establishing thorough procedures for collaborative resolution in the administrative stages of the IDEA, Congress sought to

also ensure access to the courts for related non-IDEA

claims, but only once the many alternative dispute opportunities had failed. A.F. ex rel. Christine B. v. Española Public Schools, 801 F.3d 1245 (10th Cir. 2015).

A parent who obtains a favorable hearing decision, or

a settlement agreement, is not aggrieved within the

meaning of the IDEA. Id.; See also W.K. and P.K. v.

Sea Isle City Board of Education, 2007 WL 433323, at

*3 (D.N.J. 2007). A party is only aggrieved by a final

23

decision on the matter. M.M. v. Lafayette Sch. Dist.,

681 F.3d 1082, 1090 (9th Cir. 2012).

Cases finding futility generally focus on external

factors, and not on the voluntary choices of the parties

to the dispute. A court may hold that exhaustion

would be futile if a hearing officer is not capable of

providing any meaningful relief. Honig v. Doe, 484

U.S. 305, 327, 108 S. Ct. 592, 606 (1988). Because

hearing officers have the authority to grant extensive

relief for IDEA violations, the futility exception usually arises in cases brought under other statutes. See,

e.g., Reid v. Prince George’s County Bd. of Educ., 60 F.

Supp. 3d 601, 607 (D. Md. 2014) (holding that the permanent physical injuries a student with ED and

PTSD suffered when she jumped through a moving

school bus could not be remedied through the IDEA’s

administrative process).

Parents have also alleged futility in some IDEA

cases based on hearing delays, concerns about a hearing officer’s impartiality, or dismissals of their complaints. In H.B. and T.B. v. Byram Hills Cent. Sch.

Dist., 648 F. App'x 122, 124 (2d Cir. 2016) (unpublished), the Second Circuit concluded that although the original hearing officer failed to issue a decision on the parents’ due process complaint, the replacement hearing officer’s pledge to issue a decision

within six weeks made the parents’ IDEA lawsuit

premature.

In some non-IDEA cases, courts have ruled that

the student’s death makes the exhaustion of administrative remedies futile. See, e.g. Estate of D.B. v. Thousand Islands Cent. Sch. Dist., 169 F. Supp. 3d 320, 328

(N.D.N.Y. 2016), abrogated on other grounds

24

by Christiansen v. Omnicom Grp., Inc., 852 F.3d 195

(2d Cir. 2017); Moore v. Chilton County Bd. of Educ.,

936 F. Supp. 2d 1300, 1307 (M.D. Ala. 2013); Morton

v. Bossier Parish Sch. Bd., 2013 WL 696725, at *3

(W.D. La. 2013); Taylor v. Altoona Area Sch. Dist., 737

F. Supp. 2d 474, 482 (W.D. Pa. 2010).

As discussed above, context matters: the futility

exceptions to exhaustion found in the above cases occurred when genuine futility was created by circumstances generally outside of the control of the family,

and not by the voluntary choice of the family. Parties

who settle their IDEA claims are not “aggrieved” by a

final administrative decision. They have elected the

remedies that they wish to receive and chosen a voluntary course of action.

To the extent that both sides argue that the other

side’s position will discourage them from settling, the

IDEA contains a built-in preference for early, informal

resolution of education disputes by requiring an early

resolution meeting or mediation before a due process

hearing. As shown by the CADRE Report, during the

last decade this means between 42% (2020-2021) and

75% (2011-2012) of all due process complaints were

resolved without the need for a hearing.17 These procedures focus the parties on considering the educational needs of the student, and not just on arbitrary

dollar figures. The administrative exhaustion system

of the IDEA was created specifically to require the

parents and the school to consider settlement at the

beginning of the process, when the parties are

17https://www.cadreworks.org/sites/default/files/re-

sources/2022%20National%20IDEA%20Dispute%20Resolution%20Data%20Summary%20FINAL_accessible.pdf (page 4).

25

(hopefully) still communicating, and when any disruption to the education of the student will be minimal.

Parents and school officials can work together to try

to come up with a plan that meets the needs of the

student, instead of against each other in the winnertakes-all arena of litigation.

Allowing parents to file lawsuits for monetary

damages after fully settling their claims for educational services under the IDEA will discourage schools

from settling or engaging in meaningful dispute resolution, because they would lose one of the main benefits of settlement: certainty and finality of resolution

of the dispute. See D.R. by M.R. v. E. Brunswick Bd.

of Educ., 109 F.3d 896, 901 (3d Cir. 1997) (“Settlement

agreements are encouraged as a matter of public policy because they promote the amicable resolution of disputes and lighten the increasing load of litigation faced by courts.”); see also Ehrheart v. Verizon

Wireless, 609 F.3d 590, 595 (3d Cir. 2010) (favoring

settlement “also ties into the strong policy favoring

the finality of judgments and the termination of litigation.”) Schools that know that years of expensive,

adversarial litigation await even if they offer parents

the educational services they want may be tempted to

“roll the dice” and refuse to offer any services, trying

their luck in the due process hearing and ultimately

the courts to see if they can achieve an outcome more

favorable to the school district. But it is the student

who will suffer, since any outcome – and any needed

educational services – could be delayed for years.

To the extent that parents argue that this just

means that schools should negotiate releases of ADA,

Section 504 and other claims as part of the IDEA settlements – which admittedly can be done – this would

26

in effect raise the cost of settlements for schools by requiring them to take the possibility of future monetary damages into consideration when building their

settlement offers in IDEA proceedings. This would become a backdoor means for parents to seek compensatory damages under the IDEA, which as discussed

above is currently not allowed and would have a negative effect on the resolution of education-based disputes.

Parents may claim, as in this case, that being

forced to obtain a decision from a hearing officer at the

end of a due process hearing that could have been settled is a waste of time and money, and would somehow

only benefit school districts. However, due process

hearings are as much of a drain, if not more, on school

districts. Districts spend thousands of dollars and

hundreds of hours of staff time and energy preparing

for and defending their actions in a hearing. Due process hearings put an incredible strain on special educators and teachers who are already trying to manage

unprecedented staff shortages, an expanding special

education population, and extensive student needs

which have been exacerbated by the COVID-19 pandemic.

Amici are aware that even exhausting administrative remedies puts significant burdens on their educators and school districts. Every special education dispute is paid for out of the district’s general fund, which

means costly settlements and litigation impact the educational offerings that all students served by the

public school may receive. For example, a district may

no longer be able to afford a new curriculum purchase,

additional teachers and staff, or technology because of

the costs incurred by litigation. Only the largest

27

districts can afford to budget for these potential expenses, and so the financial impact of the litigation on

an average-size school district can be profound and

widespread.

Increasing the incentive for parents to engage in

litigation over their student's education could also

have an unintended negative impact on the creation

of the IEPs in the first place. If school officials believe

that parents will not cooperate in creating and implementing an IEP and intend to go to court regardless,

the officials will have less incentive to devote the time

and energy necessary for crafting an appropriate education plan for the student. If exhaustion under the

IDEA is weakened or no longer required, parents and

district leaders will stop finding ways to work together

and turn their attention to the courts. Creating a “culture of litigation” could encourage all parties to focus

more on their ultimate litigation positions, and less on

the needs of the child before them.

IV.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals below should be upheld.

28

Respectfully submitted,

CHRISTOPHER B. GILBERT

Counsel of Record

PAIGE MARTIN

THOMPSON & HORTON LLP

3200 Southwest Fwy., Suite 2000

Houston, Texas 77027

(713) 554-6744

cgilbert@thompsonhorton.com

Counsel for Amici Curiae

DATED:

December 16, 2022