The First Circuit has recently clarified the exhaustion requirements for school-related Section 504 and Section 1983 claims in light of Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743 (2017).  In Doucette v. Georgetown Public Schools, #18-1160 (1st Cir. Aug. 26, 2019), a divided panel reversed a District Court decision that dismissed parents’ Section 504 and Section 1983 claims for failure to exhaust IDEA’s administrative process.

The case concerned a young student with a rare genetic disorder that caused him to suffer tonic-clonic seizures.  His parents requested that his service dog be permitted to accompany him to school.  The dog assisted him with his balance, mitigated his anxiety, and alerted caregivers to impending seizures.  The parents had previously engaged in several rounds of litigation at Massachusetts’ due process agency, the Bureau of Special Education Appeals (“BSEA”), regarding the student’s program and placement.  They filed the current action without first resorting to the BSEA.  In their lawsuit, the parents asserted that the school district had violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, depriving the student of access to his education by preventing him from access to his service dog in school and causing him to suffer life-threatening seizures for which they sought money damages.  They also asserted a claim under 42 U.S.C. § 1983, alleging that the district had acted with deliberate indifference by keeping the student in an inappropriate placement, as a result of which he suffered physical and emotional harm for which they also sought money damages.

The school district sought to dismiss, invoking the requirement of administrative exhaustion under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(1).  This provision requires parties to exhaust IDEA claims by pursuing them first at the state due process level before bringing them in Court.  The District Court agreed with the school district that the parents had failed to exhaust both their Section 504 and their Section 1983 claims, and therefore dismissed the case.  The First Circuit, however, held (2-1, with Judge Selya dissenting) that neither the Section 504 claim nor the Section 1983 claim was subject to IDEA’s exhaustion requirement.  The First Circuit therefore vacated the District Court’s entry of judgment for the school district and remanded the case to the District Court for further proceedings.

The First Circuit followed the Third and Tenth Circuits in using a “claim-by-claim approach,” considering each of the parents’ legal theories separately.  With regard to the Section 504 claim, the Court held that exhaustion was not required under Fry because the complaint did not allege inadequate educational services.  A claim based on sufficiency of the student’s special educational services would have fallen within IDEA’s purview, as it would have involved denial of that statute’s guarantee of a free appropriate public education (“FAPE”) and would therefore have triggered the exhaustion requirement.  Section 504, however, is a statute that guarantees access to public education (as well as to other public benefits).  The parents asserted that the student required the dog’s assistance in school as a reasonable accommodation to allow him access to his education, on a footing equal to that enjoyed by nondisabled students.  Thus, the Court viewed the crux of the parents’ 504 claim as alleging a discriminatory denial of access under Section 504, which did not require exhaustion, rather than a deprivation of appropriate special education services under IDEA, which would have required resort to the BSEA before coming to court.

The First Circuit applied both of the tests articulated by the Supreme Court in Fry to determine whether a complaint asserts a FAPE claim under IDEA (which would require exhaustion) or not.  First, the Supreme Court stated, one should ask whether the plaintiff could have brought “essentially the same claim if the alleged conduct had occurred at a public facility that was not a school.”  Fry, 137 S. Ct. at 756.  Second, one should inquire whether an adult at the school could “have pressed essentially the same grievance.”  Id.  If the answer to these questions is yes, exhaustion is not required.  The First Circuit found that both criteria were satisfied in Doucette.  The parents could have brought the same complaint if their son had been deprived access to the dog in a different type of public facility, such as a movie theater or hospital; and a non-student, such as a teacher with epilepsy who relied on a service dog for assistance during seizures, would have been able to challenge the deprivation of access to his dog at school without resorting to IDEA procedures.

The First Circuit pointed out that many children who require accommodations under Section 504 to ensure equal access at school also receive special education services under an Individualized Education Program (“IEP”).  Such a student does not usually have a separate 504 plan; instead, all accommodations and supports that the student requires for access purposes are listed in the IEP.  The mere fact that 504 accommodations may appear in an IEP, however, does not automatically require the parents to exhaust IDEA remedies.  The fact that the parents had requested an IEP amendment regarding the service dog was also not determinative.  Instead, the court examined the essence of the claim.  Where, as here, “something goes awry, and it has nothing to do with the delivery of a FAPE (the child might be hospitalized because the school failed to properly administer her medicine),” the court observed, “the existence of the IEP does not alter the character of the child’s section 504 claim.”  Doucette, slip op. at 25.  To conclude otherwise “would, in effect, place disabled school children in a disadvantaged position relative to their adult counterparts,” id. — as well as, one might add, relative to other disabled students who have 504 plans but do not have IEPs.

Having concluded that the parents’ Section 504 claim did not require exhaustion, the First Circuit turned to the Section 1983 claim.  The court found that this claim, unlike the parents’ 504 claim, did concern a deprivation of FAPE, since the parents’ “demand for an alternative school placement, so central to their § 1983 claim, falls within the IDEA’s exhaustion regime.”  Doucette, slip op. at 27 (footnote omitted).  The court concluded, however, that the Section 1983 claim, too, should not have been dismissed, either because the parents had already exhausted it or because exhaustion would be futile.  On the subject of prior exhaustion, the court viewed the parents’ meetings with the IEP Team and with their superintendent as a “use of the administrative process,” sufficient to satisfy IDEA’s exhaustion requirement.  Doucette, slip op. at 29.  (The dissent argues strenuously against this view, asserting that the parents did not exhaust their claim because “it did not move beyond the superintendent of the school district [i.e., to the BSEA] before it was resolved by the school’s acquiescence.”  Id. at 49-50 (footnote omitted).)

The majority’s reasoning was perhaps more compelling with regard to futility, which is a well-recognized exception to the principle of administrative exhaustion.  As the court stated, exhaustion will be found to be futile, and therefore not required, if “the plaintiff’s injuries are not redressable through the administrative process” and “the administrative process would provide negligible benefit to the adjudicating court.”  Doucette, slip op. at 33 (citations omitted).  Both of those criteria were satisfied here.  The student’s injuries were not redressable through the BSEA process because the forms of relief the parents sought (a determination of liability and money damages) are not available under IDEA.  A BSEA decision would not benefit the court because the court already had access to the record from an earlier BSEA hearing concerning the placement issues underlying the liability determination, and the damages aspect concerned issues of medical causation that fell outside the BSEA’s area of expertise.  Id. at 34-36.  As the court stated, “Medical causation questions are routinely considered by district courts and juries, assisted by the testimony of medical records, without the benefit of an administrative record.  Thus, no educational expertise is needed for a court to adjudicate the damages aspect of the § 1983 claim.”  Id. at 36.

IDEA’s exhaustion doctrine and its relation to Section 504 and Section 1983 claims will no doubt continue to be analyzed and clarified within this circuit and others during the months to come.  In the meantime, as Doucette suggests, the fine points of such claims can be confusing to parents of students with disabilities, particularly due to the overlap between Section 504 and IDEA protections in most students’ IEPs.  Parents who may need to assert claims based on any of these statutes would do well to seek the advice of an experienced special education attorney.

Eileen Hagerty is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.