Have you heard of “misophonia”?

Misophonia was a new one for me when I encountered the term in a 6th Circuit court case. Spell check thinks I’m misspelling it, but the term gets a lot of hits on Google, including from WebMD.  It’s a disorder that causes people to have disproportionately strong reactions to common sounds.  We’re not talking about fingernails on the chalkboard. Everyone hates that. We’re not talking about the loud, obnoxious roar of a leaf blower. We’re talking about the sound of someone eating food or chewing gum. Does that drive you up the wall?  Probably not, but if you had misophonia it would.

Jane Doe, a student in Knox County, Tennessee has misophonia, which prompted her parents to make a simple request of the school: tell the other kids not to eat or chew gum in the classroom.  The school denied that request and the parents sued. 

They won an important skirmish, but lost the war.  The parents persuaded the court that this is the type of lawsuit that can go directly to court rather than plodding through the special education due process system. In the language of the law, the court held that the parents were not required to “exhaust their administrative remedies.” They could go directly to court with their ADA and 504 complaints. 

THE SKIRMISH: EXHAUSTION OF ADMINISTRATIVE REMEDIES.   This is a term that should never be uttered at an ARD meeting. This term is for the lawyers, and this part of the court’s decision is for the lawyers. It’s your lawyer who will decide if a Motion to Dismiss based on “failure to exhaust” is worth pursuing.  This case is a published Circuit Court decision on this issue. In other words, it’s an important precedent. And here are some Key Quotes:

The IDEA’s text and circuit precedent both show what it requires: Parents seek “relief” that is “available” under the IDEA only if a child needs an  instructional change, not just a non-instructional accommodation to some rule or policy. (Emphasis in the original).

Doe’s parents did not need to proceed through the IDEA’s administrative process because their complaint did not request (or suggest that Doe needed) any instructional changes.

A ban on eating and chewing is neither “special education” nor a “related service” (the two items that make up a FAPE).

THE WAR: AN INJUNCTION.  So the court took jurisdiction of the case, but then ruled against the parents. However, the case is not over. The parents were seeking a preliminary injunction which carries with it a high burden of proof. The court was unimpressed with the “cursory briefing” the parents provided to support their cause. The court denied the injunction on that basis but sent the case back to a lower court for a decision on the full merits after all of the evidence is presented.

It's worth noting that the school had a basis for its denial of the request. Jane Doe attended L&N STEM Academy, a school of choice that was unique in the district. It did not have a cafeteria, and had a policy of allowing each teacher to decide if eating in the classroom would be acceptable. Consider this:

According to L&N’s principal, the school seeks to develop a “unique” culture that gives the students more independence than a typical high school….Because L&N operates more like a college, it has gathering spaces that can hold only 70 to 90 students and lacks a designated “cafeteria.” ….If students could eat only at specified times, the school would have to change its “entire schedule.”  Some students also travel from hours away to attend L&N and stay for extracurricular activities.  They may remain on campus for over 12 hours and often need to eat more than at a designated lunch time. The school thus allows teachers to permit snacking during class.

It's Doe v. Knox County Board of Education, decided by the 6th Circuit on January 4, 2023.  It will be published in the Federal Reporter, but for now can be found at 2023 WL 33624.


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

Tomorrow: know any good social studies teachers?