For the second time in one month we have a 5th Circuit decision on the Boring But Important issue of “exhaustion of administrative remedies.” We told you about the first case, McMillen v. New Caney ISD, on October 21st. In that case, the 5th Circuit tossed the case out of court because the plaintiff had not exhausted available administrative remedies prior to filing suit. The court held that McMillen should have pursued a special education due process hearing before going to court. Now we have a second case, Doe v. Dallas ISD.
Astute readers might guess that since this is a “Jane Doe” case, it must be about sexual harassment. It is. The Jane Doe here was the mother of T.W., a student who alleged that she was repeatedly assaulted by a classmate. The suit alleged that the district was informed of this harassment, but failed to put a stop to it. In fact, the suit alleges that the girl was actually raped at the school.
That sounds like a straightforward Title IX lawsuit, which is exactly what it would be if Ms. Doe’s child had not had a disability. But because T.W. had a disability and an IEP, the school district argued that the suit sought relief that could have been obtained under IDEA, and therefore, exhaustion was required. The federal district court agreed with that, and dismissed the case due to the failure of the plaintiff to exhaust administrative remedies.
That prompted Jane Doe to file for a special education due process hearing. Better late than never, right? Wrong. The Texas one year statute of limitations had already run, and so the hearing officer dismissed the case. Our determined plaintiff then went back to federal court and started over. Again, the federal district court dismissed the suit for failure to exhaust administrative remedies in a timely fashion. The plaintiff appealed that decision to our Circuit Court.
Of course the school district argued that this case was just like the McMillen v. New Caney ISD case, and so the court should be consistent and require exhaustion. The 5th Circuit dismissed that argument in a footnote:
In McMillen, we held that because the gravamen of McMillen’s complaint was about the defendant’s failure to provide him with a FAPE, the IDEA’s exhaustion requirement applied even though McMillen sought money damages, a remedy not available under the IDEA. Here, we do not hold that the gravamen of Doe’s complaint was about Dallas ISD’s failure to provide her with a FAPE.
Notice the emphasis on “gravamen.” This word is roughly translated as “the crux of the matter, the essence of it.” The court noted that there were 13 pages of factual allegations in Jane Doe’s lawsuit, and 12 of them “detail the sexual harassment that another student committed against T.W., including being raped—and explain how school officials were repeatedly notified about the harassment.” Thus the court concluded:
Here, Doe’s claim regards “simple discrimination, irrespective of the IDEA’s FAPE obligation.” Were all traces of T.W.’s disabilities removed, Doe’s claim would look nearly identical to what exists now: allegations that the school was deliberately indifferent to T.W.’s sexual abuse. Thus, we conclude that the gravamen of the complaint is not about the denial of a FAPE and that the IDEA’s exhaustion requirement does not apply.
The court offered a question that would help future courts discern what the “gravamen” of the matter is:
In the situation before us, the proper hypothetical is along the lines of the following question: “Could a student without disabilities bring this same claim?” If the answer is “yes,” then the essence of the suit is not the denial of FAPE, but is instead about sex discrimination. As explained above, Doe’s suit is about sex discrimination; a non-disabled student could have brought Doe’s allegation that the school was indifferent to her sexual abuse….
It’s rare for us to get two important 5th Circuit decisions in a single month, much less two decisions that address the same issue. This is an issue that should not be brought up at ARD meetings or in conversations with parents. It’s a lawyer issue. If your school district is sued when a due process hearing has not first been sought, your lawyer will decide if the case calls for a Motion to Dismiss based on “failure to exhaust administrative remedies.” It’s a question of legal strategy that should be guided by these two important decisions.
Nevertheless, I think it’s helpful for educators to know how these things get sorted out by the courts. Moreover, the two cases give us a great opportunity to work “gravamen” into our everyday vocabulary.
The case is Doe v. Dallas ISD, decided on October 25, 2019. We found it at Special Ed Connection: 119 LRP 41556.
DAWG BONE: GRAVAMEN: THE CRUX OF THE MATTER.
Tomorrow: Toolbox Tuesday!!