Fry v Napoleon Community Schools: Finding a Middle Ground

Loyola University, New Orleans From the SelectedWorks of Robert A. Garda Fall October, 2017 Fry v Napoleon Community Schools: Finding a Middle Ground Robert A. Garda, Jr. Available at: https://works.bepress.com/robert_garda/20/

Fry v. Napoleon Community Schools: Finding a Middle Ground ROBERT GARDA* I. INTRODUCTION The Supreme Court clarified and liberalized access to courts for students with disabilities in Fry v. Napoleon Community Schools. 1 It held that parties bringing claims under Title II of the Americans with Disabilities Act ( ADA ) 2 and Section 504 of the Rehabilitation Act ( Section 504 ) 3 do not need to exhaust the administrative procedures of the Individuals with Disabilities Act ( IDEA ) 4 before filing suit unless the gravamen, or substance, of the suit seeks redress for the denial of a free appropriate public education. 5 While this is a significant victory for students with disabilities, the Court did not liberalize access to courts or school liability as much as it could have. Instead, it found a middle ground for both court access and the obligations schools owe students with disabilities. The decision is significant on two fronts. First, it opens the courtroom door to students asserting ADA and Section 504 claims by excusing them from having to wind their way through the often timeconsuming and onerous administrative due process procedures of the IDEA. The prevailing view among the circuits prior to Fry made it very difficult, if not near impossible, for many 504 and ADA claims to *Robert Garda, Fanny Edith Wynn Distinguished Professor of Law, Loyola University of New Orleans College of Law. I would like to thank McKayla Smith for her thorough and tireless research and Mark Weber and the Journal of Law and Education organizing this important symposium issue. 1. 137 S. Ct. 743 (2017). 2. 42 U.S.C. 12101 12213 (2012). 3. 29 U.S.C. 794 (2012). 4. 20 U.S.C. 1400 1482 (2012). 5. Fry, 137 S. Ct. at 752. 459

460 Journal of Law & Education [Vol. 46, No. 6 proceed directly to court if they were asserted by a child eligible under the IDEA. This is a significant victory for students and parents that need immediate and efficient relief from disability discrimination. But the Court s measured approach requiring a determination of the gravamen of the plaintiff s complaint rather than just accepting the relief sought by the plaintiff at face value does not throw the courtroom doors wide open. Part I of this essay explains the Fry decision, the new exhaustion requirement, the critical issues it left undecided, and its impact going forward. The second and equally important impact of the Fry decision is the Court s heightened recognition of the differences between the protections afforded by the ADA and Section 504 on the one hand, and the IDEA on the other. The interplay of these three independent but overlapping statutes has confounded courts, including the Supreme Court, for years. It is well understood that the IDEA contains affirmative obligations for states to provide a limited class of eligible students with disabilities a free appropriate public education, or FAPE. It is equally understood that the ADA and Section 504 protect a broader class of students with disabilities against discrimination by requiring schools to provide such students with reasonable accommodations. What has been unclear is whether schools automatically meet their non-discrimination obligations to a student under Section 504 and the ADA when they provide a FAPE to that student under the IDEA. The Supreme Court definitively answered this question in the negative, but did not go as far as it could have to expand liability for schools. It recognized that Section 504 and the ADA impose independent accommodation obligations beyond the provision of FAPE, but also implied that the overlapping FAPE requirements of the statutes are identical. Part II of this essay explains how the Fry decision advances the understanding of how these statutes overlap, and how they do not, and firmly establishes that compliance with the affirmative obligations of the IDEA does not necessarily mean compliance with the non-discrimination provisions of Section 504 and the ADA. Some background statutory explanation is necessary before diving into the decision. The IDEA compels schools to provide a free

Fall 2017] Need Short Title 461 appropriate public education to all eligible students with disabilities. 6 This FAPE comprises special education and related services to meet the unique needs of the child. 7 If a dispute arises between the parents and the school regarding the provision of FAPE, the parent must follow a precise set of administrative procedures before he or she can file suit in court: file a complaint, participate in a preliminary meeting, participate in a due process hearing in front of an impartial hearing officer, and administratively appeal any adverse decision if such an appeal is available in the state. A parent may pursue a claim in court only once these administrative remedies are exhausted. 8 Students who are protected under the IDEA also are protected under the ADA and Section 504. The ADA prohibits public entities from discriminating based on disability, 9 whereas Section 504 applies the same prohibition to any federally funded program or activity. 10 Under both statutes, covered entities (such as schools) must make reasonable modifications to policies, practices, and procedures when necessary to avoid discrimination. Both Section 504 and the ADA permit aggrieved individuals to bring claims directly to court without having to exhaust any administrative remedies. 11 The protections of these statutes overlap significantly, but the IDEA requires exhaustion of its administrative remedies before a court action is filed, whereas Section 504 and the ADA do not. Congress tried to clarify the exhaustion requirement when claims are pursued alleging violations of the IDEA plus other claims with the following provision in the IDEA: before the filing of a civil action under [the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws] seeking relief that is also available under this subchapter, the [administrative] procedures under [the IDEA] shall be exhausted to the same extent as would be required had the action been 6. 20 U.S.C. 1412(a)(1)(A) (2012). 7. Id. 1401(9), (26), (29). 8. See id. 1415(b), (f), (i). 9. 42 U.S.C. 12131 12165 (2012). 10. 29 U.S.C. 794(a) (2012). 11. Id. 794a; 42 U.S.C. 12133 (2012).

462 Journal of Law & Education [Vol. 46, No. 6 brought under [the IDEA]. 12 The meaning of this provision was the crux of the decision in Fry, but the implications of the decision extend far beyond mere exhaustion of administrative remedies. II. THE NEW EXHAUSTION STANDARD Ehlena Fry, referred to as E.F. in the decision, has a severe form of spastic quadriplegic cerebral palsy and is protected by the IDEA, Section 504 and the ADA. 13 In 2008 Ehlena was prescribed a service dog to assist her with retrieving dropped items, helping her balance when she used her walker, opening and closing doors, turning on and off lights, helping her take off her coat, [and] helping her transfer to and from the toilet. 14 When Ehlena began kindergarten, her neighborhood school refused to allow her service dog, Wonder, to accompany her. It instead offered to provide a one-on-one human aide to perform all the tasks that Wonder would. The school concluded in January of 2010 that Ehlena was successful in the school environment without Wonder and that all of her physical and academic needs were being met with the human aide. 15 Put another way, the school believed Ehlena was being provided a FAPE under the IDEA. That summer, the Frys began homeschooling Ehlena and filed a complaint with the Department of Education Office of Civil Rights ( OCR ) alleging violations of the antidiscrimination provisions of the ADA and Section 504 for failure to allow Wonder as a reasonable accommodation. 16 The school defended on the grounds that because the human aide met all of Ehlena s educational needs it was not required to permit the service dog. 17 OCR rejected this defense and found that [a] school could offer FAPE to a child with a disability but still run afoul of 12. 20 U.S.C. 1415(l) (2012). 13. Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 750 (2017). 14. Id. at 751. 15. See id. 16. See id. 17. See id. at 758.

Fall 2017] Need Short Title 463 the law s ban on discrimination. 18 OCR concluded that the school had violated the ADA and Section 504 even if the use of a human aide satisfied the IDEA s FAPE standard because denial of a service dog was discrimination against children with disabilities. 19 In response to the OCR resolution, the school permitted Ehlena to return with Wonder. The Frys decided to send Ehlena to a different public school in a different district because they were concerned that school officials would resent Ehlena and make her return difficult. 20 The Frys filed suit in federal court alleging violations of the ADA and Section 504. The suit alleged that by refusing to reasonably accom modate Ehlena s use of a service dog, the school denied Ehlena equal access to the school and its programs and unlawfully discriminated against Ehlena as a person with a disability. 21 The prayer for relief sought a declaration that the school had violated the ADA and Section 504, as well as money damages to compensate for Ehlena s injuries. The trial court dismissed the lawsuit, holding that the Frys had to exhaust the IDEA s administrative remedies before commencing suit, and the Sixth Circuit affirmed. The Sixth Circuit read 20 U.S.C. 1415(l) to require exhaustion of administrative remedies if the injuries [alleged in a suit] relate to the specific substantive protections of the IDEA. 22 In other words, exhaustion is necessary whenever the genesis and manifestations of the complained of harms were educational in nature. 23 If the IDEA can provide some relief for the injury, then exhaustion is required, even if the lawsuit does not invoke the IDEA or request a form of relief available under the IDEA. This injurycentered rule is applied by a majority of the circuits. 24 The Ninth Circuit, on the other hand, adopts a relief-centered rule for IDEA 18. Id. at 751. 19. See id. 20. See id. 21. See id. at 752. 22. Fry v. Napoleon Cmty. Sch., 788 F. 3d 622, 625 (6th Cir. 2015). 23. Id. at 627. 24. See, e.g., Frazier v. Fairhaven Sch. Comm., 276 F. 3d 52, 59 64 (1st Cir. 2002); Polera v. Bd. Of Educ. Od Newburgh Enlarged City Sch. Dist., 288 F. 3d 478, 486 91 (2d Cir. 2002); Batchelor v. Rose Tree Media Sch. Dist., 759 F. 3d 266, 272 73, 276 77 (3d Cir. 2014); Charlie F. v. Bd. Of Educ. of Skokie Sch. Dist., 98 F. 3d 989, 991 93 (7th Cir. 1996); Cudjoe v. Indep. Sch. Dist. No. 12, 297 F. 3d 1058, 1066 68 (10th Cir. 2002); N.B. ex rel. D.G. v. Alachua Cty. Sch. Bd., 84 F. 3d 1376, 1378 79 (11th Cir. 1996) (per curiam), cert. den., 519 U.S. 1092 (1997).

464 Journal of Law & Education [Vol. 46, No. 6 exhaustion: the IDEA s exhaustion requirement applies to claims only to the extent that the relief actually sought by the plaintiff could be provided by the IDEA. 25 Instead of focusing on whether administrative procedures could provide some remedy for the injuries suffered by the child, the relief-centered approach requires exhaustion only if the relief sought by the parent, in form or substance, could be obtained under the IDEA. Using the injury-centered approach, the lower courts in Fry concluded that the harms to Ehlena were primarily educational in nature Wonder s absence hurt her sense of independence and social confidence at school and therefore required the Frys to exhaust the IDEA s administrative remedies. The Supreme Court vacated the Sixth Circuit award, finding a middle ground between the injury-centered approach and the relief-centered approach. It held that a suit must seek relief for denial of a FAPE to be subject to the exhaustion requirement, and to determine if a suit is seeking relief for such a denial, the substance, or gravamen, of the plaintiff s complaint, rather than the formal pleading, governs. 26 A. The Relief Available Under the IDEA Section 1415(l) requires that a plaintiff exhaust IDEA s administrative procedures before filing suit under the ADA or Section 504 only when the lawsuit seek[s] relief that is also available under the IDEA. Accordingly, the first question answered by the Court was what relief is available under the IDEA. The Court concluded that the thing a plaintiff must seek in order to trigger 1415(l) s exhaustion rule is relief for the denial of a FAPE. 27 Accordingly, the Court concluded, if a lawsuit charges denial of a FAPE, the plaintiff cannot escape [the exhaustion requirement] merely by bringing her suit under a statute other than the IDEA.... 28 25. Payne v. Peninsula Sch. Dist., 653 F. 3d 863, 874 (9th Cir. 2011) (en banc), cert. den., 565 U.S. 1196 (2012). 26. Fry at 752. 27. Id. at 753. 28. Id. at 754.

Fall 2017] Need Short Title 465 This approach expressly rejects the injury-centered approach. Instead of requiring that all educational harms be subject to IDEA due process procedures, the Court instead drew a line between enforceable FAPE rights under the IDEA and non-fape rights available under Section 504 and the ADA: [I]n a suit brought under a different statute, [if] the remedy sought is not for the denial of a FAPE, then exhaustion of IDEA s procedures is not required.... And that is true even when the suit... could be said in some way to relate to [the student s] education. 29 This holding properly, and dramatically, liberalizes access to courts for students with disabilities. It marks a major shift from prior lower court cases. Discrimination against students with disabilities in schools almost always leads to educational harm, which is why courts utilizing the injury-centered approach consistently compelled exhaustion, even in cases where a due process hearing officer could provide no relief. 30 The Court s rights-centered approach ends this practice and makes sense for several reasons. First, and most obviously, the rights-centered approach ends the different treatment of students with disabilities eligible under the IDEA and students with disabilities protected only by Section 504 and the ADA. Nearly all students entitled to services under the IDEA also are protected from discrimination under the ADA and Section 504. 31 But because the IDEA has a narrower definition of eligible students with disabilities than the ADA and Section 504, there are over 700,000 504-29. Id. 30. See Brief for the Council of Parent Attorneys et al. as Amici Curiae Supporting Petitioners, 22 26, Fry, 137 S. Ct. 743 (No. 15-497), 2016 WL 4547900 (providing examples of cases where students compelled to exhaust administrative remedies); Brief for the National Disability Rights Network et al. as Amici Curiae Supporting Petitioners, 19 25, Fry, 137 S. Ct. 743 (No. 15-497), 2016 WL 5424541 (cataloging cases where courts compelled exhaustion for what were exclusively 504/ADA claims); Brief for Autism Speaks as Amici Curiae Supporting Petitioners, 5 8, Fry, 137 S. Ct. 743 (No. 15-497), 2016 WL 4771955 (identifying bullying cases where exhaustion was improperly required); Brief for the State of Illinois and Minnesota as Amici Curiae Supporting Petitioners, 16 17, Fry, 137 S. Ct. 743 (No. 15-497) 2016 WL 4547901. 31. For a discussion of the different eligibility requirements under the IDEA and the ADA/504, see Untangling Eligibility Requirements Under the Individuals with Disabilities in Education Act, 69 MO. L. REV. 441 (Spring 2004), and The New IDEA: Shifting Educational Paradigms to Achieve Racial Equality in Special Education, 56 ALA. L. REV. 1071 (2005).

466 Journal of Law & Education [Vol. 46, No. 6 only children students that are protected against disability discrimination under ADA/504 that are not entitled to a FAPE under the IDEA. 32 These children are not subject to the IDEA exhaustion requirement when suing for ADA/504 violations because they are not covered by the IDEA. But for children eligible under all the statutes, the injury-centered approach creates a barrier to court access that does not exist for 504-only students. 33 The Court s rights-centered approach ensures that exhaustion does not prevent direct court action simply because a child is IDEA-eligible. This approach should prevent lower courts from requiring exhaustion in a wide range of cases that involve educational harm but do not involve the educational program or placement the FAPE offered to students. For example, cases involving service dogs, abuse of students with disabilities, and participation in extracurricular activities and field trips should be able to proceed directly to court. 34 This is no small matter as exhausting IDEA s administrative remedies can be burdensome, time consuming and expensive. The Supreme Court previously noted that the administrative review process under the IDEA is ponderous 35 and often takes years. 36 This can have disastrous consequences for students seeking relief that needs to occur immediately. Several amicus briefs cataloged cases where justice delayed was sadly justice denied for students with disabilities. 37 IDEA s 32. Brief for the National Disability Rights Network et al., supra note 30, at 22. 33. Brief for the Council of Parent Attorneys et al., supra note 28, at 15 18, 28 29; Brief of Professor Thomas Hehir et al. as Amici Curiae Supporting Petitioners, 11 12, Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743 (2017) (No. 15-497), 2016 WL 4524539; Brief for the National Disability Rights Network et al., supra note 30, at 4, 9; Brief of Hon. Lowell P. Weicker, Jr. as Amici Curiae Supporting Petitioners, 23, Fry, 137 S. Ct. 743 (No. 15-497), 2016 WL 4578836. 34. See, e.g., Cave v. East Meadow Union Free Sch. Dist., 514 F. 3d 240 (2d Cir. 2008) (requiring exhaustion when plaintiff sought use of a service dog); Charlie F. v. Bd. Of Educ. of Skokie Sch. Dist. 68, 98 F. 3d 989 (7th Cir. 1996) (requiring exhaustion in case alleging teacherled harassment of a student with a disability); Brief of Hehir et al., supra note 33, at 10; Brief for the National Disability Rights Network et al., supra note 30, at 18 25 (providing explanation of six cases where exhaustion should not have been required and would not be required under the new Fry standard). 35. Sch. Comm. of Town of Burlington, Mass. v. Dep t of Ed. of Mass., 471 U.S. 359, 370 (1985). 36. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238 (2009). 37. See Brief for the National Disability Rights Network et al., supra note 30, at 18 25; Brief for Autism Speaks, supra note 30, 5 8; Brief for the Council of Parent Attorneys et al., supra note 28, at 25 27.

Fall 2017] Need Short Title 467 administrative processes certainly serve important purposes, particularly when expertise is needed on whether a FAPE has been provided, but such expertise is unnecessary in determining claims of discrimination that are independent of FAPE. 38 The Court s rights-centered approach to determining what relief is available under the IDEA is a careful and balanced middle-ground approach. In determining what relief is available, the Court focused solely on the liability aspect of the IDEA rather than the available remedies under the IDEA. The plain meaning of available relief, after all, connotes available remedies much more than underlying liability or rights. The Court could easily have adopted a remedy-centered approach to the interpretation of the statute, much like the Ninth Circuit in Payne v. Peninsula School District. 39 Because the Frys were seeking compensatory money damages for emotional distress, and such money damages are not available under the IDEA, 40 it would have been easy for the Court to conclude that the relief the Frys seek is not available under the IDEA and exhaustion is not triggered. This relief-centered approach to exhaustion is strongly supported by the plain language in 1415(l) and was advocated for by the plaintiff and the Solicitor General. 41 But the Court punted. It refused to answer whether exhaustion is required when the plaintiff complains of a denial of FAPE, but the specific remedy she requests... is not one that an IDEA hearing officer may award? 42 It reasoned that resolution of that question might not be 38. See Brief for the United States as Amici Curiae Supporting Petitioners, 29 31, Fry, 137 S. Ct. 743 (No. 15-497), 2016 WL 4524537; Brief for the States of Ill. and Minn., supra note 30, at 11 13.; Brief of Hehir et al., supra note 33, at 13 (asserting that not requiring exhaustion for discrimination claims promotes efficiency). 39. 653 F. 3d 863 (9th Cir. 2011) (en banc), cert. den., 565 U.S. 1196 (2012). 40. The relief available under the IDEA is generally equitable in nature and may include financial compensation to reimburse parents for a private school placement, but compensatory damages cannot be awarded under the IDEA. See Sch. Co. of Burlington v. Dept. of Educ., 471 U.S. 359, 369 70 (1985); Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 254, 260 n.1 (2009). For a discussion of the types of remedies available under the IDEA, 504, and the Rehabilitation Act, see Mark Weber, A New Look at Section 504 and the ADA in Special Education Cases, 16 TEX. J. ON C.L. & C.R. 1, 3 (2010). 41. See Fry v. Napoleon, 137 S. Ct. 743, 752 n.4 (2017); Brief for the United States, supra note 38, at 11, 15 20. See also Fry, 137 S. Ct. at 752 n.8. 42. Fry, 137 S. Ct. at 752 n.4.

468 Journal of Law & Education [Vol. 46, No. 6 needed in this case because the Frys also say that their complaint is not about the denial of a FAPE.... 43 Leaving this issue unaddressed is a glaring gap in the decision. Future plaintiffs that are alleging essentially a denial of FAPE but suing under only Section 504 and the ADA will easily sidestep the Fry decision by merely requesting a remedy that is not available under the IDEA, such as compensatory money damages. Lower courts will be put in the same position, with the same conundrum, as before the Fry decision because of the Court s refusal to address the issue. But the Court left plenty of clues that it probably would be unwilling to accept a remedy-centered approach because, as the next part of its analysis shows, the Court is unwilling to allow plaintiffs to be the masters of whether exhaustion must occur by simple artful pleading. A pure remedy-centered approach puts the exhaustion determination exclusively in the hands of the parents, as it would empower them to simply seek a remedy that is not available under the IDEA, even though their claim is grounded in a denial of FAPE. The Court refused to empower parents with unilateral control over exhaustion in its rightscentered approach explained next and it is unlikely that it would grant them such power in a remedy-centered approach. B. The Gravamen Test While the Fry decision liberalizes access to courts, it does not fling the doors wide open. The Court s second major holding is that lower courts must look beyond the plaintiff s pleadings to determine if she is seeking relief for the denial of FAPE or not. What matters is the crux or, in legal speak, the gravamen of the plaintiff s complaint, setting aside any artful pleading.... Section 1415(l) requires exhaustion when the gravamen of a complaint seeks redress for a school s failure to provide a FAPE, even if not phrased or framed in precisely that way. 44 The Court goes on to give both clues and examples that lower courts should consider when determining if the gravamen of the claim is one 43. Id. 44. Id. at 755.

Fall 2017] Need Short Title 469 for denial of FAPE or one for a violation of independent obligations under Section 504 or the ADA. First, the plaintiff s own claims must be considered, but they are given little weight, otherwise 1415(l) s exhaustion rule is too easy to bypass. 45 The Court simply does not want the parent to be the sole decider of whether exhaustion is required, despite the statute saying that exhaustion is determined by what the parent is seeking instead of what the parent could have sought. 46 The Court s assertion that 1415(l) treats the plaintiff as the master of the claim rings hollow in light of its use of a gravamen test at all, and how it completely downplays the actual pleading within that analysis. The Court obviously was concerned about parents end-running the administrative process of the IDEA, even though several briefs to the court explained why that would not, and does not, happen. 47 Second, the Court directs lower courts to consider the diverse means and ends of the statutes covering persons with disabilities the IDEA on the one hand, the ADA and [Section 504] on the other. 48 The Court first noted the difference in who is covered and where: IDEA concerns only children and schooling whereas 504/ADA covers people of all ages both in and out of school. More importantly, it distinguished between the substantive protections: [T]he IDEA guarantees individually tailored educational services, while Title II and 504 promise nondiscriminatory access to public institutions. 49 This distinction certainly seems most critical in determining if the gravamen of an action is FAPE. If an action can only exist under Section 504 and the ADA, why would any other factor matter to determine the crux of the complaint? Clearly, the Court was concerned about cases of overlap in coverage of the statutes, 50 such as when a violation of 504/ADA also may be a FAPE denial. 45. Id. 46. Id. 47. See Brief for the United States, supra note 38, at 32; Brief of Hehir et al., supra note 33, at 13; Brief of Weicker, supra note 33, at 27; Brief for the Council of Parent Attorneys et al., supra note 28, at 4 9. 48. Fry, 137 S. Ct. at 755. 49. Id. at 756. 50. Id.

470 Journal of Law & Education [Vol. 46, No. 6 To help in this overlap situation, the Court gave a clue about the gravamen of a claim that can be ascertained by asking two questions: (1) could a plaintiff have brought the same claim if the conduct occurred at a location that was not a school; and (2) could an adult at the school have pressed essentially the same claim. 51 If the answer to either question is yes, then FAPE is almost certainly not the crux of the action, even if a denial of FAPE exists. But if the answer is no, then the complaint probably does concern a FAPE [because the] FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim. 52 For example, a student complaining about wheelchair access to a school could bring that claim against any public facility, meaning that while FAPE may be implicated, it is not the gravamen of the action. In contrast, a student complaining about the denial of math tutoring could only make such a claim against a school, indicating that FAPE is the gravamen, even though discrimination also exists. 53 The concurrence argued these clues are misleading because they only work in the absence of overlap among the three statutes. 54 But Justice Kagan appears correct in that, in both examples, a denial of FAPE and a claim of discrimination both could be filed, and the clues/questions help determine which is the crux of the suit. Finally, the court found that the history of the proceedings can indicate the gravamen of the action. If a parent initiates IDEA s administrative remedies, that is strong evidence that the substance of a plaintiff s claim concerns the denial of a FAPE.... 55 A later shift is probably just a strategic calculation to avoid an unfavorable due process hearing decision or prevent having to exhaust at all. The concurrence finds this factor ill-advised because parents may change their minds about pursuing administrative remedies for a myriad of reasons, many of which have nothing to do with the gravamen of their action. 56 51. Id. 52. Id. 53. See id. at 756 57. 54. See id. at 759 (Alito, J., concurring). 55. Id. at 757 (majority opinion). 56. See id. at 759 (Alito, J., concurring).

Fall 2017] Need Short Title 471 The Fry case provides an excellent example of how the history of the proceedings can be misleading. The Frys abandoned their IDEA rights because they did not seek prospective relief they had found a school that welcomed the service dog and because they agreed that their child received a FAPE. Their claim was based on the separate and independent claims of discrimination provided under the ADA and Section 504 that were simply not available, or sought, under the IDEA. Despite the clear inability of a due process hearing officer to provide any remedy to the Frys, the Court remanded the case for a gravamen determination because the record was unclear as to whether the Frys had initiated IDEA s dispute resolution proceedings. Consideration of procedural history seems wholly irrelevant and opens the door to lower courts finding exhaustion necessary even when IDEA s administrative procedures cannot provide the remedy that is sought. In sum, the rights-centered approach adopted by the Court liberalized the exhaustion requirement that had been utilized by most lower courts. By focusing on whether a suit seeks relief for a denial of FAPE, instead of on whether the child suffers educational harm, the Court granted more students with disabilities direct access to courts and leveled the playing field for IDEA-eligible students and 504-only students. But it was an incomplete and measured liberalization. By refusing to answer the question of whether parties seeking remedies not available under the IDEA, even when a denial of FAPE is alleged, the Court left a gaping hole for lower courts to work out. And by requiring a gravamen analysis, the Court ensured that parents do not have unilateral power to avoid the exhaustion requirement through artful pleading. III. THE INTERPLAY OF THE IDEA, SECTION 504, AND THE ADA While the exhaustion holding in Fry is significant, the larger longterm impact likely may be the Court s acknowledgment that Section 504 and the ADA have separate and independent obligations than the IDEA. The overlap of the three statutes has caused considerable confusion over the years. Because of this overlap, decision makers often have assumed that so long as a school provides a child FAPE, there can be no violation of Section 504 and the ADA. The Fry decision definitively rejects this interpretation and advances the understanding of the separate and

472 Journal of Law & Education [Vol. 46, No. 6 independent obligations under the ADA and Section 504 even if a child receives FAPE under the IDEA. But like its exhaustion analysis, the Court seems to find a middle ground. The Court was a major cause of the confusion about how the various protections for students with disabilities interacted when it ruled in 1984 that a child s sole and exclusive remedy for a denial of FAPE was under the IDEA. 57 In Smith v. Robinson, the plaintiff alleged a denial of FAPE and sued under the IDEA, Section 504 and the Fourteenth Amendment s Equal Protection Clause. 58 The parents sought attorneys fees under Section 504 and Equal Protection, a remedy not available under the IDEA at the time. 59 The parents prevailed on their IDEA claim, but the Court denied attorneys fees because the IDEA was the exclusive avenue through which a student could challenge the adequacy of his education. 60 The Court recognized that there may be situations where 504 guarantees substantive rights greater than those available under [the IDEA], 61 but the message received by decision makers was that compliance with FAPE under the IDEA barred claims under 504 and the ADA. Decision makers were not disabused of this notion even when Congress immediately responded to the Smith decision by passing the exhaustion requirement of 1415(l). The first clause of that section expressly commanded that [n]othing in [the IDEA] shall be construed to limit the rights, procedures, and remedies available under the Constitution, the [ADA and Section 504]... 62 but decision makers continued to conflate the rights under the three statutes. 63 They read the section to mean merely that parents could append 504 and ADA claims to IDEA claims and grappled with whether exhaustion was required in such situations. They never came to a uniform and concrete resolution of the substantive difference between the Section 504 and ADA 57. See Smith v. Robinson, 468 U.S. 992 (1984). 58. See id. at 1009. 59. See id. at 1000 01. 60. Id. at 1009. 61. Id. at 1021. 62. 20 U.S.C. 1415(l) (2012). 63. For a partial list of courts finding that compliance with the IDEA necessarily meant compliance with other federal protections, see Weber, supra note 40, at 18 n.114 (2010).

Fall 2017] Need Short Title 473 obligations, on the one hand, and IDEA obligations, on the other. 64 The Fry decision advances the understanding of the differences in these obligations. The statutes overlap in two significant ways. The first, which was not directly at issue in Fry, is that Section 504, like the IDEA, requires schools to provide eligible students a FAPE to comply with its prohibition on discrimination. 65 The Section 504 definition of FAPE differs from the IDEA s definition of FAPE because it requires services to be provided that meet the needs of eligible students as adequately as the needs of non-handicapped individuals. 66 The IDEA contains no as adequately language and, in Endrew F. v. Douglas County School District RE-1, 67 the Supreme Court expressly rejected an equality standard for FAPE under the IDEA. 68 The second area of overlap, and the one implicated directly in Fry, is the denial of an accommodation to a child may result in both a denial of FAPE under the IDEA and discrimination under Section 504 and the ADA. These two separate lines of overlap have caused two distinct areas of confusion: first, whether the FAPE obligations under Section 504 are greater than under the IDEA 69 and, second, whether denial of a specific accommodation may violate the nondiscrimination provisions of Section 504 and the ADA, even if IDEA s FAPE requirement is met. The Fry Court took the middle ground and expressly answered the second 64. See, e.g., Mark H. v. Lemahieu, 513 F. 3d 922, 933 (9th Cir. 2008) (finding FAPE under the IDEA to be different than FAPE under Section 504); Weber v. Cranston Pub. Sch. Comm., 245 F. Supp. 2d 401, 406 07 (D.R.I. 2003) (noting the difference between FAPE under the different statutes). 65. See 34 C.F.R. 104.33(a) (2010). See infra. notes 69 75 and accompanying text. 66. 34 C.F.R. 104.33(b)(1) (2010). 67. 137 S. Ct. 988 (2017). 68. See id. at 1001. 69. See Lilliana Kim, Not Turning a Deaf Ear: How K.M. v. Tustin Unified School District Expands the Rights of Deaf or Hard-of-Hearing Students, 47 LOY. L.A. L. REV. 1031, 1040 42 (2014) (discussing circuit court holdings noting the difference in the FAPE language of the statutes but refusing to wade into the debate of whether the statutes imposed substantively different obligations on schools); Kristin L. Lingren, Comment, The Demise of the Reasonable Accommodation Under Section 504: Special Education, the Public Schools, and an Unfunded Mandate, 1996 WISC. L. REV. 633, 652 (arguing that Section 504 s FAPE entitlement is greater than under the IDEA); Weber, supra note 40, at 10 14, 18 20 (discussing Section 504 FAPE standard as both higher and lower than FAPE under the IDEA).

474 Journal of Law & Education [Vol. 46, No. 6 question in the affirmative and implicitly answered the first question in the negative. The two areas of overlap, and the confusion they cause, are most easily seen in the controversial line of cases in the Ninth Circuit. In K.M. ex rel. Bright v. Tustin Unified School District, 70 the Ninth Circuit grappled with both areas of overlap and held that a school s compliance with its IDEA obligations to a hard-of-hearing student did not necessarily establish compliance with the effective communication obligations under the ADA. 71 The Ninth Circuit first noted the confusion in the area and how many courts had overstated the overlap between the statutes, leading them to incorrectly conclude that their obligations are commensurate. 72 It rejected a line of cases finding that the FAPE obligation under Section 504 is different than the obligation in the IDEA. It held that [b]ecause a school district s provision of a FAPE under the IDEA meets Section 504 FAPE requirements, a claim predicated on finding a violation of the Section 504 standard will fail if the IDEA FAPE requirement has been met. 73 In other words, the first area of overlap the definition of FAPE is complete and total. But the Ninth Circuit also held that there are separate and independent obligations apart from FAPE under Section 504 and the ADA. We do not find in either statute an indication that Congress intended the statutes to interact in a mechanical fashion in the schools context, automatically pretermitting any [ADA] claim where a school s IDEA obligation is satisfied. 74 Indeed, Section 504 claims predicated on other [non-fape] theories of liability... are not precluded by a determination that the student has been provided an IDEA FAPE. 75 Put simply, the second area of overlap discrimination by denying an accommodation that may impact education is far from complete and total. The Fry Court took a major step in clarifying these overlapping obligations. It definitively concluded that Section 504 and the ADA 70. 725 F. 3d 1088 (9th Cir. 2013). 71. See id. 72. See id. at 1099. 73. Id. 74. Id. at 1092. 75. Id. at 1099.

Fall 2017] Need Short Title 475 have independent accommodation requirements, even when FAPE is provided under the IDEA. It held that Section 504 and the ADA may require an accommodation that is unrelated to FAPE. 76 Indeed, a school s conduct toward [a child with a disability] say, some refusal to make an accommodation might injure her in ways unrelated to FAPE, which are addressed in statutes other than the IDEA. 77 It concluded that a complaint brought under Title II and 504 might instead seek relief for simple discrimination, irrespective of the IDEA s FAPE obligation. 78 The Court once and for all closed the door on a classic school defense that compliance with FAPE under the IDEA means automatic compliance with Section 504 and the ADA. The Fry facts are a perfect example of how the statutes do not overlap in all areas related to accommodations. The human aide provided by the school to Ehlena was sufficient for her to benefit from her special education i.e. to receive a FAPE. But the human aide did not provide her the same level of independence as non-disabled students. Students going to the bathroom or opening doors do not need to ask for adult assistance; rejecting the service dog denied Ehlena the same level of independence. It denied her equality. The Court did not expressly answer the question of whether FAPE under Section 504 was different than FAPE under the IDEA. But reading between the lines makes it fairly clear that the Court believes the FAPE standards are identical. Some of its language indicates there may be a difference: the ADA and Section 504 aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodation) to participate equally to all others in public facilities and federally funded programs. 79 But the Court focused exclusively on equality of access, 80 instead of outcomes, and its clues and examples for lower courts to determine the gravamen of the action strongly indicate that it believes the FAPE standards are identical. 76. Fry v. Napoleon, 137 S. Ct. 743, 754 (2017) (emphasis in original). 77. Id. 78. Id. 79. Id. at 756 (emphasis added). 80. See id. ( In short, the IDEA guarantees individually tailored educational services, while Title II and 504 promise non-discriminatory access to public institutions. )

476 Journal of Law & Education [Vol. 46, No. 6 The Court held that the gravamen of a student s complaint alleging denial of remedial tutoring is the provision of FAPE and thus requires exhaustion of the IDEA s remedies. It assumed, without any discussion, that the right to FAPE is identical under the statutes. If there were a difference in FAPE standards, after all, the Court would have had to consider which FAPE standard was being violated to determine what relief was available under its rights-based approach. The Court s consideration of the history of the proceedings to determine the gravamen of the action leads to the same conclusion. It never considered that a party may initially be bringing a Section 504 FAPE claim, instead of an IDEA FAPE claim, because it implicitly assumes such claims are identical. In conclusion, the Supreme Court took a major step in Fry in clarifying the separate and distinct rights and obligations under the IDEA, Section 504 and the ADA. This has large consequences well beyond the exhaustion holding that was the crux of the lawsuit. By stating that the provision of FAPE under the IDEA does not necessarily mean the non-discrimination obligations of Section 504 and the ADA are fulfilled, the Court expanded liability for schools and the available remedies for students with disabilities. Schools can no longer hide behind the minimal FAPE provisions of the IDEA to avoid liability for discrimination. But the Court stopped there. It could have acknowledged that Section 504 and the ADA impose a greater equality-type FAPE than the IDEA, opening up liability even further, but instead it strongly implied that the FAPE obligations are identical. There are significant differences among the three statutes, but not as much as some disability advocates would have hoped. IV. CONCLUSION On the one hand, the Fry decision can be looked at as a major victory for students with disability for two reasons. First, it liberalized direct access to courts for IDEA-eligible students asserting nondiscrimination claims under Section 504 and the ADA. Second, it clarified that schools are liable for certain accommodation claims under Section 504 and the ADA even if a student is receiving FAPE. On the other hand, the Court did not go as far as it could have on either front. It could have given parents complete control over whether exhaustion was required by

Fall 2017] Need Short Title 477 either respecting their causes of action as the sole basis to determine what relief they are seeking or using a pure remedy-based approach to determine whether exhaustion applies. It also could have recognized that the Section 504 FAPE standard is different, and in some ways higher, than the IDEA standard because of its equal opportunity language, thus increasing schools obligations to students with disabilities. It did neither and instead found the measured and balanced middle ground.