5th Circuit: you can’t bypass that special ed due process hearing….

We have a system of dispute resolution for special education matters. A parent who disagrees with ARD Committee decisions or is generally dissatisfied with the quality of education their child is receiving can obtain a due process hearing by asking for one. However, some lawyers who represent parents in such matters bypass that procedure and go straight to court. Why would they do that?

They do that because the administrative due process system is limited in the remedies it offers. A parent who wins a slam dunk victory in a special education due process hearing might receive make-up educational services, reimbursement for money the parent has spent on their child’s education, a commitment from the school to pay for private schooling in the future, and payment of attorneys’ fees. What they won’t get and can’t get through the due process system is an award of damages. Only a court can award damages, and only if the court concludes that the district did not just violate IDEA—it also discriminated on the basis of disability in violation of Section 504 and the Americans with Disabilities Act.

So filing suit in court without going through the lengthy administrative process of a due process hearing looks to be an attractive option. But it’s risky. The court might toss the case out for “failure to exhaust administrative remedies.” That’s what happened in W.S. v. Dallas ISD.

The student in this case had autism and Down Syndrome. He was a student who consumed objects not meant to be consumed, and of course, that can be dangerous. The district was aware of this and took numerous measures to keep the student safe, but problems persisted. The parent alleged that the school did not keep objects out of reach and the boy continued to put things in his mouth that were not for eating. The suit alleges that the student ingested six rubber gloves that required emergency surgery for removal.

The suit alleged that the district intentionally discriminated against the student by failing to provide a safe environment. The federal district court tossed the case out, holding that this is the type of case that should have been taken to a special education due process hearing. In an unpublished opinion, the 5th Circuit affirmed.

The court viewed the suit as a complaint that the IEP was not properly implemented and/or did not include the necessary protocols to provide for safety. Thus the complaint was in essence a complaint that the district did not provide FAPE. Key Quote:

Consider the complaint’s specific allegations: W.S. alleges that but for DISD’s failure to constantly supervise him, provide one-on-one supervision, and remove small objects from his environment, he would not have been harmed. DISD’s duty to provide such individualized services arises from the district’s FAPE obligations.

The court noted that an IEP includes both instructional and “related” services and that “related services includes addressing safety concerns such as removing choking hazards.” Administrative remedies were not only available, they were mandatory. The parent did not “exhaust” them. Therefore, the court had no jurisdiction of the matter. Case dismissed.

The 5th Circuit decided W.S. v. Dallas ISD on October 7, 2022. It can be found at 2022 WL 6316442.


Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: teacher rant leads to Commissioner ruling