The U.S. Supreme Court had tough questions for both sides in a case about whether a family that sued a Michigan school district under federal disabilities laws after it barred a service dog for their child with cerebral palsy should have had to first exhaust a special education administrative process.
By the end of the hourlong argument in Fry v. Napoleon Community 69´«Ă˝ (Case No. 15-497) on Oct. 31, it appeared that the court was leaning in the direction of the family’s view that it could sue for damages and other relief under the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973 without exhausting procedures under the Individuals with Disabilities Education Act.
Justice Elena Kagan, citing a separate 1986 federal statute meant to clarify the interplay between the IDEA and the other federal disabilities laws, said Congress seemed to be saying “the fact that the IDEA exists for schools does not mean that you don’t have separate ADA and Rehabilitation Act claims.”
“And if you bring those separate kinds of claims, which are essentially denial of access claims to public facilities, and then you’re asking in addition to that for a form of damages that has nothing to do with what any IDEA officer can provide, then you can go forward without exhaustion,” Kagan told Neal K. Katyal, the lawyer representing the Napoleon district before the high court.
Justice Sonia Sotomayor said that the harms alleged in the family’s ADA and Rehabilitation Act lawsuit are “essentially compensatory emotional harms": that Ehlena Fry was denied equal access when the Napoleon district denied her the use of her service dog when she was in kindergarten in 2009-10; that her opportunity to interact with other children was infringed; and that she suffered emotional distress and mental anguish as a result.
“Every one of those are the classic damage harms that are compensatory,” Sotomayor told Katyal, suggesting they were damages not covered by the IDEA.
In the Courtroom and Outside
Ehlena, now 12, observed the arguments from the second row of the courtroom’s public gallery with her parents, Stacy Fry and Brent Fry, and one of her brothers. (The family has five children altogether.)
Because Ehlena no longer relies on her service dog, a goldendoodle named Wonder, in school, the family decided not to seek permission for the dog to accompany her into the courtroom. Ehlena is now in 6th grade in the Manchester district in Michigan, which welcomed Wonder for the three years she continued to need him, until last school year.
As the case ended and the crowded courtroom dispersed, Ehlena and her family waited for a court aide to bring her walker to her before they exited. Outside, Wonder waited to be reunited with his family. The dog is now 9½ years old and made the trip from Michigan. Other families with service dogs were also outside on the court’s plaza.
Back in the courtroom, Katyal aggressively advanced the view that Congress had established a delicate balance in the special education statute and that the relief the family is seeking in its suit—a declaration that the dog be permitted and damages—was actually available under the IDEA, if under other names.
The idea of allowing money damages “for this type of situation without first exhausting the state processes is an end-run around the expert-agency statute that Congress set up, which they want to give states and localities the first crack at resolving ... instead of allowing parents to abandon the IDEA system and march into federal court, which is exactly what happened here,” Katyal said.
Skeptical Queries
Samuel R. Bagenstos, a University of Michigan law professor representing the Fry family, told the justices that Congress adopted the 1986 statute, called the Handicapped Children’s Protection Act, “to make clear that the IDEA is not the exclusive vehicle for protecting the rights of children with disabilities, and Congress also sought to make clear that cases brought under other federal statutes, like the ADA and the Rehabilitation Act, may proceed directly to court so long as they are not actually seeking relief that is also available under the IDEA.”
The family also had President Barack Obama’s administration on its side, with Roman Martinez, an assistant to the U.S. solicitor general, arguing that the family was seeking money damages, not a change to Ehlena’s individualized education program, “and that relief is not available under the IDEA.”
Martinez said that when a family and a school district, as in this case, agree that a “free, appropriate education” has been provided under the IDEA, “that should be enough” to allow a separate claim to proceed under the ADA or the Rehabilitation Act.
Both Bagenstos and Martinez met some skepticism from the court.
Justice Anthony M. Kennedy wondered whether a plaintiff lawyer’s “artful complaint” might “subject the school district to damages that it might not otherwise have had to pay.”
Justice Stephen G. Breyer told Bagenstos that if lawyers sought to avoid the IDEA exhaustion requirement by waiting to sue for damages, “that would seem to gut the carefully written procedural system that the IDEA sets up.”
Chief Justice John G. Roberts Jr. had a similar concern, that lawyers would tack on an emotional-damages claim and then school districts “will always face two-track litigation.”
But by late in the argument, both Breyer and Roberts seemed to have worked out their concerns and sounded more sympathetic to the Fry family.
Breyer told Katyal that once the district denied the service dog, “at that time you’re free to sue. You’ve met the exhaustion requirement because it’s futile. ... And this suit has been brought after that was done. So I don’t see how this suit is going to ever get back for exhaustion, because the school has made clear they won’t [allow the dog].”
(Actually, the Napoleon district did agree eventually to permit Ehlena’s service dog to accompany her, but only after the U.S. Department of Education’s office for civil rights intervened. The girl’s parents had already pulled her out of the district by that point and did not feel comfortable returning.)
Meanwhile, when Katyal said that all a family had to do to exhaust remedies under the IDEA was go through a 105-day process, which he nevertheless called “complicated,” Roberts said that “105 days is a big part of the school year. ... I think saying all they have to do is go through a 105-day process is not particularly responsive.”
A decision in the case is expected by June.
