If it’s about FAPE, you have to “exhaust your administrative remedies.”

The 5th Circuit has tossed out a lawsuit against Austin ISD because the plaintiff did not pursue a special education hearing to its conclusion. This is a failure to “exhaust” the administrative remedies that are required prior to filing suit.  The plaintiff requested a due process hearing, but settled it with the district.  Pursuant to the settlement agreement the plaintiff released claims under IDEA, but reserved the right to file suit over Section 504, the ADA or other federal laws.  With that kind of language in the settlement agreement it is not surprising that the plaintiff filed suit.

The plaintiff alleged that her daughter was injured when her one-to-one aide threw a trash bin at her.  But as the court noted, this all came up in the context of complaints over the adequacy of the child’s special education services.  In other words, the case was not really about a personal injury—it was about a failure to provide appropriate services that culminated in a personal injury.  Thus it was about FAPE.  Therefore, exhaustion was required, and it did not happen.  Key Quotes:

The heart of the complaint across these claims is that AISD failed to provide educational accommodation and oversight in the form of an adequately trained and supervised teaching aide for [the student].  And the IDEA requires exhaustion for claims that fundamentally concern a student’s educational needs.

Unlike [some previous cases], the [plaintiffs’] complaint does not allege that [the aide’s] actions were random acts of violence, but instead presents those allegations in the context of her ability to perform adequately as a special-needs aide.  

The plaintiff also argued that she did exhaust her remedies.  In the due process hearing, she sought relief under IDEA, 504 and the ADA. The hearing officer tossed out the 504/ADA claims, noting that hearing officers in Texas do not have jurisdiction over those statutes.  So there was a final decision on the 504/ADA claims. Isn’t that “exhaustion”?

The court held that a dismissal based on lack of jurisdiction does not cut it:

A jurisdictional dismissal does not constitute “findings and decision” for purposes of [20 U.S.C.] Section 1415. 

The case of Heston v. Austin ISD was decided by the 5th Circuit on June 9, 2020.  We found it at 2020 WL 3066440.


Tomorrow: Can you be in honors and special ed at the same time?