Episode One: Pending Before the Court, Part One

In our inaugural episode we talk about Fry v. Napoleon Community Schools, an education law case pending before the Supreme Court this term. What is the difference between IDEA and Section 504? What remedies are available to parents under these laws and how will the Court’s decisions affect school districts? Can parents take claims straight to court and will this circumvent the administrative process? For an update explaining the Court’s recent decision in this case, please take a look at this alert.

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Miriam: Welcome to Education Law Update, the podcast that entertains and informs. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are Ohio attorneys. We practice school law. Every so often, we get together. We talk about the latest legal developments that affect districts, board members, administrators, really anybody who works at the schools. This our inaugural podcast.

Lisa: Yes, we’re very excited.

Miriam: We have a lot to talk about. Before we get started, just a little bit about us.

Lisa: Both of us are currently attorneys, but we come from the school setting. We were both school psychologists for some time. I worked in both Ohio and Arizona so I have a little bit of perspective from two different states that function a little bit differently and have been at all grade levels. I know the little ones all the way up through high school and beyond. It gives us a good first-hand perspective for what you guys are dealing with on a regular basis and how some of this somewhat complicated law can apply to your situations.

Miriam: I was a school psychologist in Ohio and Massachusetts. Between us, we have a nice range of the entire country. Also, Massachusetts, of course, is a little bit different.

Lisa: All right. Well, let’s dive right in and give you, since this is our inaugural podcast, a little overview of how we’re going to approach things in each episode. We’re always going to try to give an overview of the topic we’re going to touch on, give you any kind of background that you might need to understand some of the concepts that might come up. Then we’re going to talk about what the current law is whether it’s the case or a variety of cases that have established the interest and come to a final discussion about implications and what school districts should be keeping in mind and considering and some practical tips.

Miriam: Overview. We have the first case that we’re going to talk about is Fry v. Napoleon School District. This is an important case that’s going to decide whether parents can skip the whole special education process and go right to federal courts when they’re looking for money. This decision is going to affect school districts significantly because the bottom line, it’s going to affect financial burdens to the school districts and it will definitely affect how school districts respond to parent complaints. The strategy that school districts and their attorneys and their administrators will need to take to protect themselves. This is what it’s about. Here we go. Parents of special education children who are displeased with the services the district is providing should they be able to skip filing a due process complaint and go right to federal courts?

Lisa: Really quick, just to clarify. A due process complaint is really basically an administrative process of review. Without having to go to court to figure out disputes and come to a resolution or a remedy, this is a little bit less formal process that the parties can go through to hopefully resolve.

Miriam: Right. Less litigious. Here’s what I’ll do. I think most of our audience, Lisa, I think most people, most administrators, school districts, I think they’re familiar with IDEA, they’re familiar with Section 504. I’m just going to go through these laws very quickly, five minutes, the difference between these laws and how it works when parents are unhappy.

Lisa: Yes. I think that’s a great idea. We want to make sure everybody is on the same page. For those of you who don’t deal with IDEA and Section 4 on a daily basis, this will just give you a little refresher to know where we’re going to go with this complicated case.

Miriam: All right. There are several laws that relate to children with special education needs that school districts have to follow. There is the federal IDEA law. This is pretty much the most famous one of them. This is the one that people know. It requires districts to provide a free and appropriate public education for children who fall into one of 13 disability categories and, this is a key, and those children need specially designed instruction in the school district. This is a federal law and this is what it requires. Children have to receive a free and appropriate public education, we call that FAPE.Now, Section 504 is another federal law and it requires districts to refrain from discriminating against students with disabilities. Obviously, this discrimination term is very wide. Part of how courts interpret this is that school districts have to provide kids with accommodations and modifications. Here’s the difference. IDEA requires specially designed instruction, 504 requires accommodations and modifications. Just a quick example. Let’s say a student has autism. It’s a serious condition. The district is going to conduct an evaluation, a multifactor evaluation. The team will say, “Hey, this is the little boy with autism. This is what he needs. He needs specially designed instruction, not only in reading and math, he also needs a specially designed instruction in social skills or behavior management. That’s what we are going to provide. After we provide that, we are going to see how he’s doing with the specially designed instruction. To do that, we’re going to create an IEP, an Individualized Education Program for this little boy. That IEP is a legal document that will spell out exactly what this child needs and what services we’re going to provide for the goals that he will accomplish within one year.” It lays out the goals and objectives for that child to complete in one year and then what services the district will provide. That’s the student who needs specially designed instruction. Let’s say we have another child. Let’s say the child is physically handicapped, maybe cerebral palsy, for example, but they do not need specially designed instruction. They’re doing great. They’re doing great in reading. They’re doing great in Math. They have friends. There’s really nothing that the district needs to teach them. What they do need, what the child might need is accommodations. They might need to have somebody with them to carry their books. They might need to use an elevator. Often, we have this with kids with ADHD. They might not need specially designed instruction, but they might need an accommodation. They might just need to say closer to the teacher. They might need to take their test in a separate room. It’s really important to understand the difference between accommodations or modifications and specially designed instruction. Lisa, you’ll agree, we deal with attorneys, even special education attorneys who get these laws confused.

Lisa: Yes, absolutely. On pretty a regular basis we hear some confusion on this both in schools and in the legal field.

Miriam: Now you know.

Lisa: It is important to understand the difference. Also, a key term we’re going to talk about with this case coming up is an exhaustion requirement. Maybe we should hit on a little bit of what the process looks like and why that’s important.

Miriam: Yes. I also just want to say you guys now get it. You understand the difference between IDEA and 504. Now, let’s talk about how conflicts are resolved. If a parent is upset with their child’s IEP, Individualized Education Program, they’re not happy with the services, with the specially designed instruction, they’re not happy with the child’s goal, maybe they disagree with the evaluation process, they cannot go to federal court right away. They can’t go to federal court. They have to go through an administrative process which is called a due process complaint and they have to go through a hearing with a hearing officer appointed by the state. This is called exhausting your remedy. You can’t go to federal court if you don’t go through this process. That’s because the goal of IDEA conflict resolution is to address specifically what the child needs. It’s not to give the parents a sack of cash. It’s not to give them money. It’s to help that child do well in school, remediate the problem to allow the district to fix whatever it did wrong. First of all, just briefly, a parent files a due process complaint. The state, let’s say Ohio because that’s where we are, accepts that complaint. There’s a resolution period where the law requires parents to sit down with the district and say, “Here’s what we want”. The district says, “Okay, well, maybe we can work this out. Maybe we can do that”. Then if they can’t do that, they might try mediation or form a mediation process. Then if that doesn’t work, then they go to a hearing. There’s a hearing officer, a state-appointed employee who listens to both sides. He or she listens to the evidence that the parents provide and the school districts provide. The individual hearing officer listens to the witnesses, let’s say, for example, the teachers or outside providers, educators, the parents. Then the hearing officer decides if the district did anything wrong. If the district did violate the law, what should the remedy be for that child? The remedy is never a blank check.

Lisa: Right. Even when you’re talking money with these cases with IDEA, if the parents do get money, it’s going to be in the form of a reimbursement for sending a child to a private school or it’s going to be some form of compensatory services possibly reimbursement for that. It’s not going to just be, “You want $100,000, here you go because you had some kind of harm”.

Miriam: Exactly. This process, the IDEA process is designed to remedy whatever the district did wrong in terms of making the child whole. Giving back to the parents the money that they already spent or prospectively paying for, let’s say, a private school that the parents say they need because the district cannot provide the services their child needs. That’s IDEA. Now, 504 is different. Section 504 allows the parents to go directly to court…

Lisa:  And get the money.

Miriam: …get the money…that’s the piece that many parents want. Here’s an example. Let’s say the child has a wheelchair. The child cannot get around for whatever reason and they need an elevator and the district says– This is an extreme example but the district says, “Hey, I’m sorry, there’s no elevator for you”. Then the parents, at some point, are going to go to federal court and they’ll ask for damages. They’ll say 100,000, 200,000, whatever they’d like the federal court to award them.

Lisa: Now under IDEA, say that same child had some other needs and we were looking at IDEA in play too, you’re not going to have an available remedy of a sack of cash as a result out of the hearing or out of the court. Under IDEA, you’re only going to get that money if we’re looking at reimbursement for a private placement or compensatory services to make up for services the child didn’t get. There are going to be situations that evolve that are a little bit muddy of the two laws where they collide. That’s what we have in this case. Why don’t we just dive in and start talking about it and we’ll talk about some of the issues that come into play then?

Miriam: Sure, go ahead. Tell us about Fry.

Lisa: Here we have a child with cerebral palsy and the child has a service dog. The service dog is a golden doodle named Wonder and the child wants to bring this service dog to school so that the child can be supported with opening doors, taking off the coat, turning lights off, also just to increase mobility and independence.

Miriam: I just want to cut in for two seconds. Golden doodles are adorable. I looked up this dog when I was reading this case. Very cute and I think it’s great. I have a dog. It doesn’t turn off any lights. It just sits there.

Lisa: I’m really impressed that this dog could turn off the lights. I’m not going to lie.

Miriam: I read this and I was like, “Can I just trade my dog in? Is there a service where I can trade my dog in for this kind of golden doodle?” I guess probably not. Sorry. Let’s just get back to the case. What happened? What did the district say?

Lisa: Basically, at some point, the district did allow the child to have a trial with the service dog at school but at some point during that school year, they said, “For next school year, the dog’s not going to be allowed back. We can provide the same type of services and meet the child’s needs in the same way by providing a one on one aid”.

Miriam: Exactly. The district is going all out paying for a person to just be with the child at all times and that person will help the child opening doors, taking off coats. The aid can do all that. The child doesn’t need a dog but what the parents say-

Lisa: The parents though, they really did want the dog. One, for privacy issues. For example, I know one thing at issue was when the child would go to the bathroom, the service dog could help the child have some privacy to navigate that environment versus having to have a door open or a person helping her do those kinds of things. Really, they were not seeing the one on one aid being quite as equivalent in independence, privacy, those kind of areas.

Miriam: On a similar vein, the parents were just like, “We don’t want her to grow up relying on people. We want her to be more independent.” Then this dog is a way to transition to more independence rather than less independence.” This seems like a really typical education conflict on one hand. It’s just like the district’s providing some kind of service. The parents want something else. This looks like the typical thing, that IDEA, that the resolution process would be good for. The administrative hearing with the hearing officer. This looks like a good case for it but the parents said, “No.”

Lisa: Well, right. The parents wanted to go just straight to court. They are basically saying, “We don’t dispute that the district is following the IEP, providing the services that the kid needs to progress in the curriculum”. They really just see the issue as an access issue and thus felt that they should not have to go through the administrative process. They would want to go just to court looking at monetary damages basically for the emotional distress that the child was under by not having the dog with her. Also, just to point out just some of the background history, the parents did begin homeschooling the child and first filed a complaint with OCR under 504 and ADA.

Miriam: The Office for Civil Rights said…

Lisa: The Office for Civil Rights did find a violation. They said that the school really should have allowed the service dog, and the school agreed to allow Wonder to attend school with the child. However, this is about the same time that the parents then decided to enroll the child in a different school. The district actually wasn’t even given the opportunity at that point to allow the dog in. Then this is when they decided they wanted to go straight to court for their monetary damages.

Miriam: I think this is a good time to just go into the different perspectives. What districts think about these kind of things, the parent perspectives. I think the parents’ perspective is pretty clear here. Why should we have to waste our time with hearings and resolutions when we’re not looking for an educational remedy? Our child’s going to this other district. Our little girl is fine. She did well in reading. She did well in math.

Lisa: Right. Basically, the administrative process for them is just a waste of time. It’s not going to get them to even an available remedy of money damages that they are seeking and they really do make the clear distinction that this has nothing to do with whether or not the child had a free and appropriate public education. They admit that the district was providing that. That’s not a point of contention at all here.

Miriam: Right, I think the school district has a really good argument. I think when I read this, I was concerned for school districts that everybody’s going to go straight to court. I think sometimes parents can just say, “Look, resolution, whatever, compensatory education, we can get more money in federal court.” Whether that’s true-

Lisa: I don’t even know if it’s only about the money here as far as for the parents but from the district’s perspective, they’re really saying, even if you look at the complaints and what’s being argued, yes, we get that they’re not saying IDEA is involved here but just because there’s not a specific IDEA claim, doesn’t mean relief is available under IDEA. Potentially, the district’s trying to say there is a way through that administrative process we could come up with a remedy that’s appropriate here.

Miriam: I think the fear here is that, other parents, this will open the door for other parents to say, “Yes, this, certainly it was some educational issues but here’s a 504 claim, we’re going to say accommodations. We’re going to say that was the problem, not the specially designed instruction, not the IEP but it was accommodations. We’re going to go to federal court. We’re going to skip this whole thing because we can get more money because maybe we don’t want just the school district to pay $10,000 for tutoring or whatever. Maybe we want $100,000 and we can get that either from a jury or from a judge or from the mediation process. That would be more beneficial to us”. School districts, this is a difficult situation for them because potentially, most of the resolution cases, most of the IDEA cases could be converted now to federal court claims which is much more litigious.

Lisa: You’re hitting on the heart of the global concern. I think when we look at the facts to this case, it’s a little more clear cut and cleaner than the potential impact that it could have based on the decision. Ultimately, I don’t think we hit on this did go through Federal Court through the District Court through the Circuit of Court, that it got dismissed in favor of the district saying that the parents did not go through the exhaustion requirement. The case was basically, the facts were never heard in the District and Circuit Court. Then we land in the Supreme Court where they have to decide, “Do we need to exhaust or not?” You’re hitting right on the key issue of, if you don’t have to exhaust in a situation like this or even one that might be a little more muddy, then are we going to have everybody going to court? Everybody trying to just leave out the IDEA claims, maybe disguise them or in the oral arguments, key-

Miriam: Yes, how were the oral arguments?

Lisa: Well, there was this key discussion about how everyone might try to just really write these artful complaints that leave IDEA out or cover it up in hopes that we can just go to court and get money, when in fact, really, that might be the heart of it. I think it’s a little harder to make that stretch in this case specifically because everybody really is conceding that child’s IEP was being met and the services were being provided but there certainly are situations out there, and I would be willing to argue most of the situations where this would come into play, are really cases where IDEA is in that complaint just buried or covered up. Really the administrative process could get at the best interest of the child and really come up with a good solution. That is not your specific just here’s the cash or money to pay for the damages you received. It’s actually problem-solving and finding something that’s going to work for this case.

Miriam: Yes, so exactly. I think another piece of this is the best interest of the child. Is it really in the best interest of a child for the parents to go to federal court and get a check? Is that really what the child needs or does the child need the district to work something out? Does the child need some kind of compensatory education, something related to the educational services that the district would provide? I think an important piece of this is that question. I don’t know, did the court look at that at all? I’m not really sure that this was a consideration. It’s something I thought about.

Lisa: Yes, for sure. Oral arguments were at the end of October, actually on Halloween in 2016, and the Justices really seem to understand how far-reaching their decision is going to be in this case. Even though they recognized that this case may be a little more clear cut, and seemed to lean towards the side of yes, maybe these parents really didn’t need to exhaust, that it was okay that they went to court, I very much got the impression in the discussions in the oral argument, that they’re understanding that there are a lot of situations out there that could be problematic if we just ignore exhaustion.

Miriam: Do you think the parents are going to win here? I got the impression that the dog was so cute, and the little girl was so cute. I saw a picture of her she’s adorable, and I was like, I don’t know how these justices are going to rule for the district.

Lisa: If I pick up my crystal ball I got to tell you I don’t think the district is going to make out in this situation, but I do think that the court recognized that the local education and parents in that team are really who know the child best. That administrative process really lets their team look at the situation to find of an appropriate remedy versus the court. I think you’re going to see even if they do rule for the parent, there’s going to be some major qualifiers here as far as when you exhaust. Let me give you the couple of scenarios that we could see coming out of this decision.

Miriam: Okay.

Lisa: One possible scenario is you don’t have to exhaust if what you’re seeking is money, and it’s not available under IDEA.

Miriam: By exhaust you mean go through the administrative hearing.

Lisa: And the resolution.

Miriam: Exactly.

Lisa: That’s also would be coupled with, there’s also no allegations of a free and appropriate public education denial. That’s one scenario.

Miriam: This is the option, you can only go to federal court if there’s nothing about free appropriate public education, or the child’s specially designed instruction, or the child’s Individualized Education Program.

Lisa: Right, and you’re looking for money. The other scenario is, you don’t have to exhaust if it would be futile to go through the administrative process.

Miriam: It’s pointless.

Lisa: Right, but this is going to be one that there’s a lot of concern about. Because what is futile? Are you going to say It’s futile just because I want money? Why would I go through the administrative process? I need money to make me whole. Then we’re back in the whole big conundrum of when is it futile? To me, if they go with that kind of decision, it’s not really going to answer the question.

Miriam: Yes, I think this is a tricky point like you’re saying. When is it pointless? When is making the parents go through the whole resolution process, a waste of their time? I think any parent can claim that. I think that’ll be part of the allegation and be like, “We just want money so this is a waste of our time”.

Lisa: Right. Then you get to another option, which is really looking at the heart of the complaint. Even if the language of FEP, or IDEA or IEP aren’t used in the complaint, if the whole issue in the complaint really is a focus on an IEP, looking at how artfully it’s written, like they were talking about in the oral arguments. Then looking at what the administrative process be futile.

Miriam: It’s like a really individual analysis of the actual case. I think what you’re saying is, maybe the court will say, “We have to look beyond the actual words of the complaint”.

Lisa: Yes, exactly. The actual what are you trying to get and what facts lead to what you’re trying to get.

Miriam: Okay, good. Let’s talk about implications.

Lisa: We kind of hit on a little bit of that with increased litigation. As a school district, what are you really concerned about other than being in court more often? What does that boil down for you?

Miriam: I think that’s really important. I think potential for damages court is much more litigious, and there’s also a lot more money at stake. Like I said, parents can just ask for literally whatever they want. When there’s mediation, first of all, juries are unpredictable. When there’s mediation, there’s just a lot more money at stake.

Lisa: Certainly, I could see a lot of parents filing more lawsuits, not necessarily to go to court, but to have more leverage against the district. To force their hand in situations where maybe if you didn’t have quite that much leverage with an administrative process, you might be able to work a little more collaboratively versus the districts just having to give in to what the parents are seeking.

Miriam: Here’s an important piece, lots of districts have insurance companies appointing attorneys for them. The insurance companies are looking at this and the insurance companies just really look at a cost-benefit analysis. If it’s an administrative process, the insurance company might say, “Well, compensatory education, whatever $60,000 or whatever”.

Lisa: Right. That sounds a lot more reasonable.

Miriam: Than $200,000. They’ll say, “If you want to go to trial that in itself will cost you $250,000, so let’s just settle”. This is what I’m really concerned about, school districts might be in the position of settling cases in federal court that really shouldn’t be settled.

Lisa: Right, that they maybe never really did anything wrong. They’re just going to be starting to hand out stuff and hand out payments, which I guess is a key issue I have. We have all these tax dollars and money spent in education. Money from the government, which is what the districts get for complying with IDEA, it’s tied to some federal funds. Do we want that spent on litigation and lawsuits versus on meeting children’s needs?

Miriam: Yes, and this is the overall question I think for us also is, should these decisions be left up to individual schools? Is this something that Federal Courts should step in and say, “Here’s what we think about what the district should have done?” Or is this a decision in terms of the best interest of the child, decision best left to the local school district?

Lisa: Even if not the local school district, at least in the administrative process, you generally do have hearing officers that at least understand the education setup and these laws a little bit more intimately and can understand the facts in that state.

Miriam: Practically.

Lisa: More practically. Yes, exactly. Do we want courts really trying to decide– and you could even tell in the oral arguments. You have a Supreme Court saying, “Hey, we’re not educators, explain these laws to us”. They recognize they’re not in the best position-

Miriam: That’s good.

Lisa: -to talk about this in a practical situation. I think that’s an important part.

Miriam: On the other hand it’s a federal law, so that has to be a nationwide agreement of what’s supposed to happen. I think that’s an important piece. The decision is, we haven’t had a decision yet it’s expected in the summer.

Lisa: Right, so I’m guessing some time this summer maybe June-ish we’ll get a decision and see where we need to go from there and what the standards are going to be.

Miriam: This is a great case. I love this case. It’s very interesting, and I’m glad you guys listened to it. I hope you liked it, I hope you enjoyed it. If you did, please give us a rating on iTunes or Stitcher or wherever you get your podcast from.

Lisa: Yes, thanks for joining us. We have a great topic next time we’re going still be talking about the Supreme Court another decision. We’ll dive into IDEA and what is needed for FAPE a little bit more, and we hope you join us.


Miriam: Hello, Education Law Update listeners. It’s Miriam-

Lisa: -and Lisa.

Miriam: Whilst recording this episode, the Supreme Court issued its decision in Fry versus Napoleon. In short, the court decided this case in the parents’ favor as we expected. It also offered schools parents some parameters to think about when deciding whether a claim can go straight to federal court, or when it has to go through the administrative process.

For more detailed information, check out our podcast page on our website at walterhav.com W-A-L-T-E-R-H-A-V.com or click on the link provided in this podcast notes. We look forward to discussing this new decision in upcoming episode. See you soon.

Lisa: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.