You can’t get around that special ed due process hearing….

If the parents of a student with a disability seek legal relief for the denial of FAPE—Free Appropriate Public Education—they have to pursue a special education due process hearing. They cannot just stroll on down to the courthouse and file a lawsuit.  They have to go through the administrative hearing first. This is what the lawyers refer to as “exhaustion of administrative remedies.”   

The 5th Circuit has now affirmed that basic rule.  The plaintiff in the case argued that the suit did not allege a violation of IDEA, but rather, discrimination based on disability in violation of Section 504.  The court said that did not matter. What mattered was not the labels the plaintiff used to describe the case, or the statutes cited, but the substance. Key Quote:

But both the substance and language of McMillen’s complaint reveal that he is challenging the denial of a free appropriate public education. 

The plaintiff also asserted that he did not have to “exhaust” his administrative remedies because he was seeking money damages, something you cannot get through the administrative process.  What about that?  Does the plaintiff have to “exhaust” his administrative remedies even when those remedies will not get him what he seeks?  The law says that administrative remedies must be used first if the suit is seeking “relief that is also available under this subchapter.”  Here, the court drew a distinction between the “remedy” preferred by the plaintiff vs. “relief that is also available.”  Key Quote:

[Most courts] read “relief available” under the IDEA “to mean relief for the events, condition, or consequences of which the person complains, not necessarily relief of the kind the person prefers.”  According to this view, because the IDEA can remedy the failure to provide a blind student with a reader by giving her one, a suit seeking damages for such a failure must first exhaust the IDEA’s administrative procedures.

This is an important precedent from our 5th Circuit, as it is the first case that addresses “exhaustion of administrative remedies” after the Supreme Court’s decision on that issue, Fry v. Napoleon Community Schools (2017).  This one is McMillen v. New Caney ISD, decided by the 5th Circuit on October 2, 2019.  We found it at 2019 WL 4855234. 


Tomorrow: Toolbox Tuesday!!