Wonder the Dog Gets Day at SCOTUS in Girl’s Disability Case

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By Kimberly Strawbridge Robinson

Oct. 31 — Students with disabilities could get quicker relief from certain federal law violations.

This will depend on whether the U.S. Supreme Court can find a middle ground in the fight over whether they can go straight to federal court with their claims or if they must attempt to work out problems with their school first ( Fry v. Napoleon Cmty. Sch., U.S., No. 15-497 , argued 10/31/16 ).

Finding that middle ground seems more likely following oral argument at the high court Oct. 31.

Students must first exhaust administrative remedies when seeking relief that is available under the Individuals with Disabilities Education Act, 20 U.S.C. §1415(l).

But the student here says she’s not suing under the IDEA, but other federal disability laws, like the Americans with Disabilities Act.

The school violated the ADA when it refused to allow her to use Wonder the Goldendoodle, her service dog, at school, the student argues. She shouldn’t have to exhaust the IDEA process before suing in federal court, she says.

The question for the justices is how broadly to read the IDEA’s exhaustion requirement.

It would “gut” the IDEA scheme if the statute is read too narrowly, the school’s attorney told the justices.

But it could delay relief for a pointless procedure if read too broadly, Chief Justice John G. Roberts Jr. said.

Artful Pleading Workaround?

One reason the student, E.F., shouldn’t have to exhaust the IDEA administrative remedies before suing in federal court is that she’s seeking damages, E.F.'s lawyer Samuel Bagenstos, of the University of Michigan Law School, Ann Arbor, Mich., told the justices.

E.F. is seeking compensation for the emotional distress she suffered when the school refused to allow her to use Wonder to help with her mobility, Bagenstos said. E.F. was humiliated when she had to demonstrate to four adults how Wonder would help her use the bathroom, he said.

Such damages are allowed under the ADA, but not under the IDEA, he said. That proves E.F. isn’t bringing an IDEA claim, Bagenstos said.

But artful pleading could get plaintiffs around the IDEA’s time-consuming process, Justice Anthony M. Kennedy said. Damages aren’t allowed under the IDEA, but retroactive reimbursement for educational services is available.

That would upset the “careful regime” set up by Congress in the IDEA, which encourages cooperation between parents and schools, Justice Stephen G. Breyer said.

Gaining Leverage

It would have practical implications too, Roberts said.

Parents could gain leverage in their fight with schools over the IDEA’s requirements by filing a separate suit in federal court, he said.

The IDEA says parents have to wait before they can put that threat into action, Roberts said.

It’s all about timing, he said.

But timing “goes the other way” too, Bagenstos said.

Students challenging federal disability violations would have to go through a lengthy process with the school before they could even get their federal suit started, he said.

That process is 105 days, according to the school’s attorney, Neal Katyal of Hogan Lovells US LLP, Washington.

‘Easy’ Case

Moreover, another reason that E.F. shouldn’t have to go through the IDEA process is because she isn’t claiming that she didn’t receive a “free appropriate public education,” Bagenstos said.

That’s the IDEA’s main goal—ensuring that disabled students receive a “FAPE.”

But allowing E.F. to use Wonder at school was never part of her FAPE, Bagenstos said.

Requiring both a claim for damages and that there not be a challenge to the FAPE would address some of Roberts’ concerns about abusing the process, the chief justice told Bagenstos.

E.F.'s argument that either prerequisite would suffice to negate the exhaustion requirement was “aggressive,” Roberts said.

The court doesn’t have to decide if both prerequisites or only one are necessary because both are present in this case, Justice Elena Kagan said.

In some ways, that makes this case an “easy” one, she said.

Gravamen Solves Hesitation?

The “hesitation” is that requiring only a claim of damages would bypass the exhaustion requirements for most court cases, Justice Sonia Sotomayor said. Schools might be fighting these cases on dual tracks—in the IDEA process for some claims and the courts for others, Roberts said.

If you say that’s going to be the outcome, the court probably isn’t going to look too kindly on that, Sotomayor told Bagenstos.

Instead, she suggested that the court look at several factors to determine if the federal lawsuit is really challenging the IDEA or another federal law.

Perhaps courts should look at the heart or “gravamen” of the complaint, as Breyer put it.

Just a Charade?

If that were the test used here, E.F. would have to go back to the IDEA process, Katyal said. That’s because her ADA case implicates the IDEA, he said.

Would E.F. get everything she’s asking for under the IDEA, Roberts asked.

No, Katyal said. Well, then isn’t the rule that she gets to proceed with the things she won’t get under the IDEA, Roberts asked.

That would be doing an “end-run” around the IDEA process, Katyal said.

But that process would be a “charade,” Roberts said.

The school would ask what the parents want, and they’d reply, “nothing that you can give me,” Roberts said.

“Why in the world” would we want that process to happen, Sotomayor asked.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

The argument transcript is at http://src.bna.com/jKG.

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