Federal appellate court rules parents could not raise futility of administrative process as exception to IDEA’s exhaustion of remedies requirement
Doe v. Dublin City Sch. Dist., No. 10-3492 (6th Cir. Oct. 28, 2011)
Abstract: A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) has ruled that the parents of a special education student could not maintain a cause of action under the Individuals with Disabilities Education Act (IDEA) because they had failed to exhaust their administrative remedies as the statute requires. The panel rejected the parents’ argument that they were excused from the exhaustion requirement because resort to the administrative process would have been futile or inadequate to protecting their child’s rights.
Instead, the panel concluded that the parents could not raise futility as an exception to IDEA’s exhaustion requirement because they did not “attempt to fully invoke the administrative process by requesting a due process hearing.” It pointed out that the burden of proving futility rested on the parents after the school district raised the failure to exhaust requirement as an affirmative defense.
Facts/Issues: According to the allegations of the complaint, Anthony Doe attends school in the Dublin City School District (DCSD). When his academic performance declined and he began exhibiting emotional and behavior problems, his parents requested his school develop an individualized education plan (IEP) pursuant to IDEA. Specifically, Doe’s mother requested that DCSD conduct a Multi-Factored Evaluation of Doe. The principal refused to conduct the examination because it was too late in the school year. Doe’s parents organized a private psychiatric evaluation, which resulted in the diagnoses that Doe suffers from Asperger’s Disorder, Attention Deficit Hyper Activity Disorder, Anxiety Disorder, and Major Depressive Disorder.
The parents provided the diagnoses to the school and again asked it to conduct a Multi-Factored Evaluation so that the school could begin to develop an IEP for Doe. The principal did not inform Doe’s mother of a scheduled meeting to discuss the Does’ request until the day of the meeting. Although the Does were allegedly told that the meeting would be rescheduled, it took place without either parent in attendance. During the meeting, DCSD concluded Doe did not have a disability.
DCSD provided the parents with written notice of the decision. The parents informed the principal that they were appealing DCSD’s refusal to evaluate Anthony and were requesting a hearing. The parents do not assert, however, that they filed a formal, written request for a due process hearing at that time. DCSD informed the parents that they would have to participate in a Request for Assistance Meeting before proceeding further. During this meeting, the School District agreed to contact Doe’s doctors and prepare a behavior intervention plan with their input. DCSD warned the Does that even if it concluded that Anthony needed an IEP, it could not put the plan into place until at least October of the new school year.
In the interim, DCSD stated that it would have a nearly complete behavior intervention plan that would sufficiently address Doe’s needs such that he would be able to return to school in August when the new year began. DCSD provided the Does with a behavior intervention plan on August 5. The Does allege that the plan was not adequate to address Anthony’s disability or allow him to return to school. On August 13, the parents submitted a second request for the School District to conduct a Multi-Factored Evaluation and develop an Individualized Education Plan. With the start of the new school year rapidly approaching, the parents met with DCSD on August 19. DCSD continued to refuse to acknowledge that Doe had a disability and again denied the parents’ request for an IEP. Although DCSD had promised to provide a more detailed behavior intervention plan at this meeting, it failed to do so. Without a sufficient plan in place, the parents allege that Anthony was unable to attend school.
The parents then filed suit in an Ohio federal district court against DCSD alleging violations of IDEA and other federal disabilities laws. The district court entered an interim agreed order that required DCSD to conduct a Multi-Factored Examination and, if appropriate, prepare an IEP for Doe by September 11. The parties complied with the agreed order and DCSD has now satisfactorily accommodated Anthony’s needs.
After the parties resolved Doe’s educational needs, the School District moved to dismiss the suit based on the Does’ failure to exhaust administrative remedies. The parents filed a motion for nearly forty thousand dollars in attorney’s fees and costs, arguing that they were the prevailing party by virtue of getting DCSD to acquiesce to the terms in the agreed order. The district court granted DCSD’s motion to dismiss based on the parents’ failure to exhaust administrative remedies, and denied the Does’ motion for attorney’s fees.
Ruling/Rationale: The Sixth Circuit panel affirmed the lower court’s decision. It pointed out a party generally must exhaust its administrative remedies before bringing a lawsuit under IDEA, but an exception to the requirement exists “if it would be futile or inadequate to protect the plaintiff’s rights.” Acknowledging that DCSD had raised the exhaustion requirement as an affirmative defense, as recognized by a number of federal appellate circuits, it emphasized that the parents had the burden of demonstrating that compliance with the exhaustion requirement would be futile or inadequate.
The panel found that because the parents “did not request a due process hearing before filing this lawsuit,” it could not ”conclude that the administrative process would have been futile or inadequate.” It rejected the parents reliance on Massey v. District of Columbia, 400 F.Supp.2d 66 (D.D.C. 2005), in support of their argument that the administrative process would have been futile.
It found that unlike the present case, in Massey, the school district had already developed an IEP for the student and failed to follow the procedures required by IDEA after the student’s parents requested a due process hearing. In the present case, while DCSD ’s “conduct [was] far from exemplary, it has not clearly failed to follow the requirements of [IDEA] in a manner that demonstrates that resort to the administrative process would have been futile.”
Finally, the panel pointed out that while the parents in Massey had alleged violations of IDEA’s time requirements, the parents in the present case made no such allegations. It, therefore, concluded that “the time limits in [IDEA] do not apply and [DCSD] was not required to comply with them.” As a result, the panel held DCSD’s ”failure to act more quickly does not establish that the administrative process would have been futile or inadequate to address the [parents’] complaints.”
Doe v. Dublin City Sch. Dist., No. 10-3492 (6th Cir. Oct. 28, 2011)
[Editor's Note: In August 2011, Legal Clips summarized the decision in Payne v. Peninsula Sch. Dist., in which a majority of the U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI, GU, MP), sitting en banc (all active judges participating in consideration and decision of the case), ruled that the Individuals with Disabilities Education Act’s (IDEA) exhaustion of administrative remedies requirement is not jurisdictional and, instead, is an affirmative defense that must raised by a school district or is waived. The school district in Payne is petitioning the Supreme Court to hear the case.]