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This Is Exhausting! Parents of Special Needs Children Who Allege Educational Harm Must Exhaust Administrative Remedies Under the IDEA Before Filing Lawsuit

March 1, 2017

Defense Digest, Vol. 23, No. 1, March 2017

by Christopher J. Conrad, Esquire

Key Points

  • Parents of children with special needs who allege educational harm must exhaust administrative remedies under the IDEA before filing suit in federal court.
  • Once the IDEA administrative process is fully exhausted, parents can pursue all rights and remedies in federal court under the IDEA, ADA, § 504, the U.S. Constitution and state disability law.
  • The U.S. Supreme Court’s eventual decision in Fry v. Napoleon Community Schools likely will provide further guidance as to types of claims of educational harm that must be exhausted under the IDEA before suit can be filed.


The Individuals with Disabilities Education Act, as amended (IDEA), is a federal civil rights statute intended to “[e]nsure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs ... .” 20 U.S.C. § 1400(d)(1)(A). If an eligible child’s parents believe their school district or other local educational agency has failed in its statutory obligation to provide the child with a free appropriate public education, the IDEA affords the parents due process rights, allowing them to file a complaint and request an administrative hearing “[w]ith respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” § 1415(b)(6)(A). Once the administrative process is exhausted, either party aggrieved by the findings and conclusions of the due process hearing officer (or administrative law judge)—whether the parents or the local educational agency—may seek judicial review of the decision in federal court. § 1415(g), (i)(2). A federal district court will not have subject matter jurisdiction over the dispute unless and until the IDEA administrative process is exhausted.

Significantly, the IDEA requires exhaustion of the administrative process in cases brought directly under the Act as well as in non-IDEA cases where parents seek relief that can be obtained under the Act. Section 1415(l) of the IDEA specifically states:

 Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter. (emphasis supplied).

A recent decision from the U.S. Court of Appeals for the 3rd Circuit, S.D. v. Haddon Heights Bd. of Educ., 833 F.3d 389 (3rd Cir. 2016), involved a child who suffered from multiple medical issues, including chronic sinusitis, which caused him to be frequently absent from school. The child was not identified by the school district as an eligible student under the IDEA. However, the school did develop a § 504 accommodation plan for the child, which allowed extra time for assignments, tests and quizzes, and required the parents to communicate with the child’s teachers about any missed work and absences. The § 504 plan was later amended at the parents’ request and necessitated that the child’s teachers send weekly updates about missing assignments and to provide class notes. It also required the child to complete his assignments within two weeks of any absence, allowed his teachers to reduce assignments at their discretion, and mandated the child to create a “to-do” list, keep folders of complete and incomplete work, and communicate with teachers, the guidance counselor and school nurse.

The parents alleged that the § 504 plans failed to provide the child with a mechanism to obtain homebound instruction or other supplemental instruction to enable him to keep up with the curriculum and otherwise enjoy the benefits of the educational program to the same extent as his non-disabled peers. As a result, the parents claimed, the child struggled academically and fell further behind his peers. The parents also claimed that the most current § 504 plan failed to provide an accommodation for the district’s new attendance policy. They were concerned that, as a consequence, the child was likely to be retained, in light of his many medically-related absences throughout the school year.

The parents filed suit in federal court against their school district under § 504 of the Rehabilitation Act of 1973 (§ 504), the Americans with Disabilities Act (ADA), the 1st and 14th Amendments of the U.S. Constitution and state law. In their complaint, the parents contended the district failed to appropriately identify the child as a student with a disability, and they questioned whether and to what extent the § 504 plans sufficiently addressed the child’s right to a free appropriate public education. They claimed the § 504 plans were deficient and denied the child educational opportunities. The parents sought various forms of relief, including compensatory education (an equitable remedy available under the IDEA) and money damages.

In response to the federal lawsuit, the school district filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim under Federal Rule of Civil Procedure 12(b). The district court concluded that in view of the educational nature of the parents’ federal claims, they were required to exhaust the IDEA administrative process before filing suit. Consequently, the federal claims were dismissed, without prejudice, for lack of subject matter jurisdiction.

On appeal, the 3rd Circuit affirmed, reasoning that the discrimination claims asserted under the ADA, § 504 and the U.S. Constitution alleged educational injuries that related to the provision of a free appropriate public education as defined by the IDEA. The court found that central to the parents’ claims was their contention that the school district should have provided alternative or supplemental instruction to the student, and that the district failed to provide instruction tailored to the student’s special needs resulting from his disability. Thus, the court concluded that these were free appropriate public education claims which could have been remedied through the IDEA administrative process. In so holding, the court emphasized the “strong policy” encouraging the exhaustion of remedies in similar cases and stated, “[w]here parents challenge a school’s provision of a free appropriate public education and allege educational harm to a child, remediation of the alleged educational deficiencies is best addressed in the first instance by educational professionals, rather than a court.”

Notably, the 3rd Circuit in S.D. reached nearly the same conclusion as did the 6th Circuit Court of Appeals under similar circumstances in Fry v. Napoleon Community Schools, 788 F.3d 622 (6th Cir. 2015). In Fry, the student suffered from cerebral palsy and received services under the IDEA through an Individualized Educational Plan (IEP). The student was prescribed a service dog to assist her with everyday tasks. The school provided the student with a human aide in school as part of her IEP and refused to allow the student to bring her service dog to school. The parents sued the school district in federal court, alleging violations of the ADA, § 504 and state disability law. The trial court dismissed the lawsuit for lack of jurisdiction because the parents did not exhaust their administrative remedies under the IDEA. The 6th Circuit affirmed, reasoning: “[b]ecause the specific injuries the Frys allege are essentially educational, they are exactly the sort of injuries the IDEA aims to prevent, and therefore the IDEA’s exhaustion requirement applies to the Frys’ claims.” Significantly, however, the United States Supreme Court granted certiorari in Fry, 136 S. Ct. 2540 (2016), and heard oral argument in October 2016. As of this writing, the Supreme Court has not rendered a decision.

S.D. is an important decision for school districts and other local educational agencies as it reinforces the IDEA mandate—at § 1415(l)—that aggrieved parents cannot circumvent the IDEA administrative process when seeking to vindicate their child’s educational rights by filing suit directly in federal court under statutes other than the IDEA. Even though parents may have viable claims under the ADA, § 504 or the U.S. Constitution, if a claim relates to the provision of a free appropriate public education, or otherwise alleges educational harm, they first must pursue due process under the IDEA and exhaust their remedies in an administrative forum before filing suit. S.D. provides a precedential basis to challenge jurisdiction in a lawsuit filed under statutes other than the IDEA where the alleged deprivation of the educational rights of a child with special needs is the driving force behind the claims at issue.

On the other hand, S.D. does not foreclose parents’ rights to pursue federal litigation arising from their child’s education altogether. As the 3rd Circuit explained, parents will still be permitted to seek all rights and remedies they or their child may have—including money damages—under the ADA, § 504 and the U.S. Constitution once they fully exhaust the IDEA administrative process. Therefore, regardless of the forum, local educational agencies must be prepared to defend their decision-making and to convince the ultimate fact finder (whether hearing officer, judge or jury) that a free appropriate public education was delivered and that no educational harm came to the student. Moreover, local educational agencies will need to monitor and await the outcome of the Supreme Court’s decision in Fry, which will likely provide further guidance as to precisely what types of claims of educational harm must be exhausted under the IDEA before suit can be filed.

*Chris is a shareholder in our Harrisburg, Pennsylvania office. He can be reached at 717.651.3531 or



Defense Digest, Vol. 23, No. 1, March 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact

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Christopher J. Conrad
(717) 651-3531


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