Michigan Seclusion Case Demonstrates Fry’s Limits on IDEA Exhaustion

When the Supreme Court issued its decision in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017) two years ago, many experts believed that it would result in an increase in court claims against school districts. This is a reasonable interpretation, since Fry put plaintiffs in school litigation in the drivers seat. Under the holding in Fry, students and parents could, via careful pleading to avoid the IDEA, chart a course to sue in court for damages without first exhausting administrative remedies by seeking a due process hearing. While the ubiquitous “floodgates of litigation” may not yet have fully opened, a new Michigan case shows that, by and large, early assessments of Fry’s impact appear to be correct.

person wearing bandages
The student in Wadley won the right to sue in court for an injured hand but failed to prove school officials caused the injury by violating her rights.

In Wadley v. Hazel Park Community Schools, 2019 U.S.Dist. LEXIS 210377 (E.D. Mich. 2019), the Eastern District of Michigan found that the IDEA exhaustion mandate did not bar a disabled student’s claims. In that case, a student sought damages for alleged violations of her federal constitutional rights under 42 U.S.C. Section 1983 and state law for injuries that occurred while school staff used restraint and seclusion techniques to control her behavior. While the school officials asserted that the child’s claims were barred by the IDEA since she had not first sought a due process hearing, the court disagreed. First, the court reasoned that, although the child was found eligible for an IEP after the incident at issue, she was not served under the IDEA at that time. Second, the court analyzed the complaint and determined that the student had not alleged that she was injured due to a denial of FAPE or violation of the IDEA. As a result, the court held that, under Fry, IDEA due process procedures would not redress the physical injuries (a broken finger and laceration) for which she sought compensation. Therefore, the court held it could not dismiss the suit outright and had to address the merits.

While the student won the right to have her claims decided on the merits, she ultimately did not prevail. The court granted summary judgment on the constitutional and state law tort claims, since the proof showed that the school staff’s behavior did not offend either the 4th or 14th Amendment of the United States Constitution. In particular, the court found that the complaint allegations that (1) the student was placed unsupervised in seclusion for hours at a time; and (2) restraint procedures were used needlessly or in contravention of regulations to be unsubstantiated. Consequently, it granted summary judgment in favor of the school district and its employees.

In short, Wadley shows us that Fry made it easier for disabled students to bring claims for damages directly to court. Getting into court and getting past summary judgment, however, are two different matters. If students choose to sue directly in court, they still must be prepared to prove their allegations or their claims will fail.

Standard of Reasonableness Prevails in Sixth Circuit’s First IDEA Peanut Allergy Case

food healthy dry pattern
Peanut allergies are common in public schools today.

In litigation instituted under the IDEA, parents and school districts are often at odds about almost everything. One thing that they tend to agree on, however, is that the safety of the student is of critical importance. There tends to be a disconnect, however, about the meaning of the term “safety” when one compares the perspective of parents and school officials. This disconnect is front and center in IDEA cases involving allergies because, in some cases, the quality of a plan for a student can have life and death consequences. This can be compounded when a student’s disabilities may prevent or inhibit him or her from relaying signs and symptoms to teachers. Nevertheless, although the IDEA requires schools to consider a student’s health or functional needs in evaluating students and developing IEPs, see 34 CFR 300.304(b)(4); 34 CFR 300.324(a)(iv); it does not impose clear procedures for addressing allergies specifically.

The common practice for many districts is to address allergy needs in the form of a written health plan developed in conjunction with the student’s physician and school nursing staff. In conjunction with this, IEPs are often updated to include information about the allergy and its impact on the student’s education or placement. But, for parents who understandably want nothing short of a guarantee of their children’s safety, the question inevitably arises as to whether the IDEA requires schools to do more? In the recent decision, Barney v. Akron Bd. of Educ, 2019 U.S. App. LEXIS 5437 (6th Cir. 2019), the Sixth Circuit says “no.”

In Barney, an IDEA-eligible student had a peanut allergy for which the school had developed a written health plan. Among other things, it called for the limitation of peanut products in his classroom and permitted the provision of medication if a reaction occurred at school. His IEP also included information about the allergy and his health plan. Despite the precautions in the plan, food servers accidentally sent sealed containers of peanut butter to the student’s classroom on one occasion. A staff member in the room noticed the error early on and sent the student to another room to eat lunch as a precaution. Nonetheless, the parent came to school after learning of the incident, contended contra the observations of school staff that he was having an allergic reaction, and took him to the hospital. Notably, the record was silent as to whether the student was in fact diagnosed with a reaction at the hospital. Regardless, a few days later the parent withdrew the student from school and filed for an IDEA due process hearing..

At every level of the proceedings, the parent’s claims were rejected. No procedural or substantive violations of the IDEA were found and the student’s health plan was found to be adequate. On appeal, the Sixth Circuit agreed. Citing the long-standing rule that a student’s IEP need only be “reasonably calculated” to provide educational benefit to satisfy the IDEA, the Court found that the allergy had been sufficiently addressed in the student’s IEP and health plan. In other words, the Court was not concerned that the school’s plan was not perfect because the student may have had a reaction at school. Rather, the Court was satisfied that the district’s plan appeared to make reasonable attempts to keep the student safe at school notwithstanding his allergy.

Although peanut and other allergies are common in public schools today, Barney is the first time that the Sixth Circuit has set a standard for accounting for student allergies under the IDEA. As such, this decision is critical becuase it will provide a road map for District Courts, hearing officers, and state-level review panels in deciding IDEA claims relating to student allergies in Kentucky, Tennessee, Ohio, and Michigan.

Failed Abuse Claim against KY School District Demonstrates How High the “Deliberate Indifference” Standard Is

The Sixth Circuit recently affirmed the grant of summary judgment in favor of a Kentucky school district sued for allegedly tolerating the abuse of a special needs student. In K.C. v. Marshall County Bd. of Educ., Case No. 18-5186 (6th Cir. 2019) the parents of a special needs student filed suit under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act after they learned that their child may have been subjected to verbal and physical abuse and neglect while at school.

Though the record contained substantial evidence to verify that the abuse occurred, including a surreptitiously obtained recording of a staff member, reports of at least one fellow student, and findings from at least one child-protection agency, the Court affirmed the grant of summary judgment in favor of the Board of Education. The reason for this, as the Court noted, was that the student’s claims under the ADA and Section 504 were subject to the onerous “deliberate indifference” standard. This standard, which governs a number of federal civil rights and constitutional claims, requires actual notice of alleged wrongdoing and a failure to act. Although the Court was plainly troubled by the facts in the record before it, as indicated by the concurrence of one Justice who wrote separately merely to express his concern, the Court found that there simply was no evidence that the Board had forewarning of the teacher’s behavior. As such, it affirmed the grant of summary judgment in favor of the District.

The Court was able to sidestep a potentially more challenging issue–vicarious liablity–due to the parents’ failure to raise this issue at the trial court level. On appeal, the parents attempted to argue that the Court should follow the lead of some courts outside the Sixth Circuit to apply a “vicarious liability” standard to ADA Title II claims. Under this theory, an entity could be held responsible for it’s employee’s violation of law even if it does not have actual knowledge of it. In K.C., however, the Court refused to address this issue since the parents had not alleged it in their complaint or raised it when opposing the District’s motion for summary judgment.

In short, K.C. suggests that there may be some developments as to the legal standard underlying disability harassment and abuse claims in the future. For the time being, however, K.C. demonstrates that the currently prevailing standard governing such claims is a difficult one to satisfy.


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!