1st Circuit: Parents need not exhaust IDEA process.

Byline: Kris Olson

Parents did not have to exhaust the administrative procedures outlined in the Individuals with Disabilities Education Act in order to pursue federal claims against a school district for allegedly failing to create a safe environment for their disabled child, a sharply divided panel of the 1st U.S. Circuit Court of Appeals has decided.

Specifically, the 1st Circuit ruled that the parents could go directly to court under the Rehabilitation Act because the "gravamen" of their claims did not involve the denial of Free Appropriate Public Education, or FAPE.

Meanwhile, a substantive due process claim under 42 U.S.C. 1983 could be pursued because the parents had already exhausted the administrative process or because continuing to pursue it would have been futile.

Guided by the 2017 U.S. Supreme Court decision Fry v. Napoleon Community Schools, the majority specifically relied on "two clues" that the Fry court had suggested could be used to discern whether the gravamen of a complaint is the denial of FAPE.

In the first clue, the majority said FAPE is unlikely the true subject of a complaint if one can answer "yes" which it believed was the case here to a pair of hypothetical questions: "Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school? And could an adult at the school have pressed essentially the same grievance?"

The second clue involved the history of the case specifically whether the plaintiff had previously invoked IDEA's formal procedures. Here, the plaintiffs had availed themselves of the IDEA administrative process and ultimately obtained the relief they had been seeking: an alternative placement for their child.

But that was "not the end of the story," the majority concluded.

It noted that the premise of the plaintiffs' 1983 claim was that their child had suffered harm from the delay in receiving the administrative relief. Only after IDEA had no other remedies to offer did the plaintiffs bring their constitutional claim, the majority said.

It went on to answer in the negative a question it said the Fry court had left open: whether exhaustion of IDEA's administrative procedures is required when the plaintiff is requesting a specific remedy that a hearing officer cannot award. Congress had a "special concern" with not requiring exhaustion when doing so would be futile, the majority claimed.

In a strongly worded dissent, however, Judge...