What Is a Gravamen Anyway? Sophie G. and the Sixth Circuit’s Attempts to Make Sense of IDEA Exhaustion Post-Fry

Last term, the Supreme Court of the United States issued two significant decisions relating to the IDEA, which mandates the provision of special education services to disabled students. I mentioned the first, Endrew F., last time but indicated that the impact of that decision may not be as great in the Sixth Circuit because it had years before adopted the “meaningful educational progress” standard for assessing FAPE. One year after its issuance, on the other hand, the second SCOTUS decision, Fry v. Napoleon Community Schools, which relates to the doctrine of exhaustion is already shaping up to make an impact in the Sixth Circuit.

Exhaustion is a rule which requires administrative claims to be pursued administratively before they are pursued in court. The policy here is to allow for the development of an administrative record and permit experts in the area to make factual findings before the more generalist courts weigh in. In theory, this sounds easy but in practice with respect to IDEA claims exhaustion can be well . . . exhausting. There a few reasons for this but one reason is that the IDEA is not alone in its protection of disabled students. To the contrary, multiple other federal statutes apply, including most notably Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.

In Fry, the Supreme Court attempted to draw a line to indicate when exhaustion would apply and claims would have to be tried in an administrative due process hearing first and when it would not and claims could proceed directly to court. The Sixth Circuit’s recent decision in Sophie G. v. Wilson Cty. Schs, however, suggests that this line may be a dashed one at best. In Fry, the Supreme Court held that exhaustion applied where the “gravamen” of the complaint was FAPE or the propriety of a student’s educational plan or services under the IDEA. To determine if this was true, the Court told lower courts to consider whether due process proceedings under the IDEA had been initiated and to answer two questions: (1) whether the plaintiff could have pursued the same claim against another public facility; and (2) whether an adult could bring the same claim under another federal anti-discrimination statute.

In Sophie G., however, the Sixth Circuit held that exhaustion did not apply even though due process proceedings had been initiated and the answer to these questions was “no.” In that case, the child had challenged her IEP in a due process proceeding but she settled those claims. Later on, she challenged the alleged exclusion from an after-school program as disability discrimination under Section 504 and the ADA. Though due process proceedings had been filed, the Court found it significant that Sophie G. had not requested relief relating to the after-school program in the due process complaint. It also found, as the Supreme Court’s own Justice Alito noted in his concurrence to Fry, that the two questions may not apply in all cases. For instance, the Sixth Circuit explained that it made no sense to consider whether an adult could sue for exclusion from an after-school program. Rather, it made more sense to consider whether a student like Sophie G. could sue another public daycare provider for denying her admission in the same way the school district allegedly had. With this distinction in mind, the Court found that the gravamen of the student’s complaint was discrimination and not FAPE. On this basis, it reversed the prior decision of the Middle District of Tennessee which had dismissed the complaint on exhaustion grounds.

Under Fry, it seemed that the Supreme Court gave parents and students a road map to pursue discrimination claims directly in court without first attempting due process proceedings if they were careful to avoid FAPE in pleading their complaint. Sophie G. seems to take this a step further because it suggests that, even when due process proceedings are initiated but not finished, exhaustion may be avoided by carefully pleading the due process complaint. This suggests that in the Sixth Circuit under Fry parents and students may not only have a choice in which process to pursue but which process to pursue first. 

Does this mean exhaustion is finished in the Sixth Circuit? Not so fast. The Court also recently issued another exhaustion decision which I’ll discuss next time and it held that exhaustion applied. What Sophie G. does appear to mean is that the doctrine of exhaustion may be for the Sixth Circuit as it is for practitioners: an easier theory to understand in concept than it is in practice to implement.

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