Exhaustion Is Dead? Long Live Exhaustion! F.C. v. Tennessee Dep’t of Educ.

Last time, I discussed the Sixth Circuit’s first post-Fry decision relating to the scope of administrative exhaustion under the IDEA. Though that case favored the student in permitting her claims to go forward without a prior due process hearing, I made it clear that exhaustion under the IDEA is not dead.

The Sixth Circuit’s more recent decision in F.C. v. Tennessee Dep’t of Educ.makes that clear. Exhaustion plainly still applies to purely IDEA claims that allege a denial of FAPE. In F.C., a disabled student who was born in China and had an educational plan developed there moved to a public school district in Tennessee. He alleged that the district failed to implement the plan or evaluate to develop one of their own. His parents then enrolled him in a private school and initiated due process proceedings to secure reimbursement of the tuition.

Upon a motion of the district, the due process complaint was dismissed for procedural deficiencies under 34 CFR 300.508 but, significantly, leave was granted to refile. An amended complaint was filed which failed to cure the deficiencies and another order dismissing was entered, but the order again explained that the dismissal “is specifically based on procedural defects in the [c]omplaint, and that the merits of the [p]etitioners’ claims have not been addressed.” It further noted that, F.C. could file another due process complaint and pursue a hearing “provided it complie[d] with the procedural requirements of the IDEA.” Rather than do so, the parents filed a complaint in federal court and contended that exhaustion was “futile” because their prior complaints had been dismissed.

As you might expect, the Middle District of Tennessee rejected this argument and on appeal the Sixth Circuit agreed. Both courts rejected the notion that due process procedures were futile because additional appeals remained available, as long as proper procedures were followed. In particular, the Sixth Circuit held that F.C.’s situation was unlike its past decision in Covington v. Knox Cty. Sch. Sys., 205 F.3d 912, 917 (6th Cir. 2000), in which it found that due process procedures were “inadequate to protect” the student’s rights.

So what does this case tell us? For one thing, it makes it clear that exhaustion for IDEA claims will be enforced in the Sixth Circuit. In addition, as for IDEA claims, it seems the Court is not inclined post-Fry to expand exceptions to exhaustion, such as futility, to permit IDEA claims to proceed to court without first completing available due process hearing procedures. Thus, as for IDEA claims, long live exhaustion!

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