In 2017 SCOTUS decided Fry v. Napoleon Community Schools, which was about the boring but important legal doctrine of “exhaustion of administrative remedies.” The case was about the tangled relationship of IDEA with Section 504. Can you sue under 504 without first asking for a special education hearing under IDEA? After the Court’s decision, some people predicted that the “exhaustion” doctrine had been blown to smithereens, and plaintiffs would be able to take virtually any complaint straight to court.
That has turned out not to be true. The 3rd Circuit Court of Appeals has decided a case in which a student served under a 504 plan was tossed out of court because he could have sued under IDEA. You got that? The kid was never under IDEA and never had an IEP. He had a 504 plan, so you can understand why his lawyers figured they could sue under 504 and bypass the IDEA proceedings. But the court disagreed. The lawyers for the student argued that he would not even have been eligible under IDEA, but the court disagreed with that as well. The student had asthma, which could qualify under “Other Health Impairment” as an IDEA disability.
The case is S.D. v. Haddon Heights Board of Education, decided by the 3rd Circuit in an unpublished decision on January 31, 2018. We found it at 71 IDELR 143 and 722 F. App.x. 119.
DAWG BONE: IF THE “GRAVAMEN” OF THE COMPLAINT IS ABOUT THE DENIAL OF A FAPE, YOU HAVE TO GO THROUGH IDEA PROCEEDINGS.
Tomorrow: Can you put “Beto for Texas” on a cheerleader banner?