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.