Exhaustion of remedies in special education

The federal District Court for the Middle District of Pennsylvania issued a seemingly routine decision that is more than it appears.  Vicky M. v. Northeastern Educational I.U. 19  (although the docket numbers and plaintiff names differ, this decision appears to otherwise be the same as John G. v. Northeastern Educational I.U. 19, Civ A. 06-1900, --- F. Supp. 2d ---, 2007 WL 1450365 (M.D. Pa.). 

The court’s treatment of the Section 1983 claims should be reconsidered in light of A.W. v. The Jersey City Public Schools  341 F.3d 234 (3d Cir. 2007), which was issued nine days later. But more than that, the Third Circuit’s treatment of exhaustion of remedies in such cases now needs to be revisited, as Vicky M. unintentional shows.

Because the family in Vicky M. sought money damages, the court ruled exhaustion was exempted

as futile. The court, relying on and quoting W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995), wrote at page 18, “Recognizing that damages are available under § 1983, but not under the IDEA administrative procedures, the Matula court then concluded that ‘by its plain terms [IDEA] does not require exhaustion where the relief sought is unavailable in an administrative proceeding.’” Vicky M. thereafter discusses some legislative history regarding previous incarnations of the IDEA, as discussed in previous cases, as further supporting the exhaustion exception. 

But A.W. now controls, not Matula, and families no longer can pursue money damages claims via a § 1983 cause of action. This knocks down the first pillar of support to the exception. The legislative history relied on is not from the current IDEA as passed in 2004, knocking out the second pillar. And regardless of current legislative history – an oxymoron, to be sure – the plain text of IDEA of 2004 extends an IDEA-based cause of action only to those “aggrieved” by the administrative decision, 20 U.S.C. § 1415(i)(2)(A), taking out a third pillar of a now unsupportable exception.

The “implementation” exception to exhaustion noted by the court is, by all accounts, supported only by the few ancient statements of legislative intent. In contrast, exhaustion under IDEA of 2004, as well as previous versions, is required not only for “identification, evaluation, or educational placement,” but also “the provision of a free appropriate public education.” 20 U.S.C. § 1415(b)(6). Implementation – whether the absolute failure or, more often, a dispute over appropriateness – is a part of FAPE. Further, the 2006 federal regulations have detailed provisions and procedures for filing complaints with the state educational agency, including complaints alleging the “failure to provide appropriate services.” 34 C.F.R. §§ 300.151-300.153

Given the complexities involved in special education, especially about the quality of implementation, and given the procedures in place as well as the recent turn of events stemming from A.W., it would be a wonder if a court did not require exhaustion in just about every conceivable instance and, thereby, have the benefit of “expert” administrative review.

And the impact of the Winkelman decision is. . . .

The U.S. Supreme Court’s May 21, 2007 decision in Winkelman v. Parma City School District says parents are permitted to represent their own special education interests in federal court.  Parents, schools, and the courts will, of course, feel the impact of this decision; only the degree of impact, particularly the amount of litigation, remains uncertain.

The Court’s actual pronouncement is not very remarkable. That parents have certain special education rights has never really been in doubt. All the decision adds is that parents have the right to enforce IDEA’s “other mandates” such as the child’s right to FAPE. “Parents may seek,” the Court wrote at page 15, “to enforce this mandate through the federal courts, we conclude, because among the rights they enjoy is the right to a free appropriate public education for their child.” (Emphasis added.)  

In other words, parents have the right to “enforce” a right, that is, the child’s right to FAPE. 

In my view, this is a case where the dissent got it right:

the majority decision takes a fundamental common law rule, complete eviscerates it, and does so based on reading between the lines despite no clear statutory text intending to upset existing law. Be that as it may, the dissent is not now the law.

In the end, parent attorneys probably will use the Court’s broad words of substantive parental rights to drive new due process issues, Section 1983 Civil Rights litigation and money damages claims. Ultimately, this concern, too, will come before the Supreme Court as the Courts of Appeal are split on whether a simple violation of IDEA gives rise to money damages, either directly or via § 1983. More on that later when I discuss A.W. v. The Jersey City Public Schools in "Money damages, disabilities, and education."

TItle IX, gender discrimination, and money damages

The question of money damages under various anti-discrimination / inclusion education statutes seems to be a hot subject recently. The recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), discussed in another entry, ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.  

A recent federal district court case from Puerto Rico, Frechel Rodriguez v. Puerto Rico Dept. of Educ., 478 F. Supp. 2d 191 (D. Puerto Rico 2007) (unfortunately, I have not found a public domain copy), reached a similar outcome in a Title IX-based claim of gender discrimination. Specifically, the issue was whether a plaintiff has a right of action under § 1983 to redress violations of Title IX.  According to the case, the Sixth and Eighth Circuits have held such a right exists, but the Second, Third, and Seventh Circuits have ruled such a § 1983 claim is barred under the Sea Clammers doctrine announced in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981).  The Frechel Rodriguez decision dismissed the Title IX-based § 1983 claims.

So what does this trial court case from Puerto Rico mean for us? 

While the Frechel Rodriguez case is statistically not likely to become a Supreme Court case (indeed, it was not appealed), it clearly demonstrates an area in which the federal courts of appeals disagree. 

Interested parties should look ahead for such “splits among the circuits” in order to raise and preserve possible appeal issues. Disagreements among the courts is a factor the federal appeal courts and the Supreme Court consider when reviewing federal statutory claims or constitutional rights. Not surprisingly, if all the cases are going one way, the chances of convincing the court to go the other way on appeal are not good.  In contrast, a split gives the case and the issue juridical life.

In Title IX actions, litigants need to be cognizant of the “split of authority” highlighted in Frechel Rodriguez when strategizing about their cases.