“You only get one shot.” Or sometimes more… The Fifth Circuit finds an ADA FAPE claim may be viable despite an IDEA FAPE finding

The intersection and interplay of the IDEA, ADA, and Section 504 can be complicated and confusing. All three laws provide protections to students with disabilities in public schools. But how are their requirements different? And when can families go to court versus when must they exhaust administrative remedies? What remedies are available under each? A year ago, the Supreme Court decided Perez v. Sturgis Public Schools, weighing in on when administrative exhaustion is required. That decision altered the paradigm of IDEA exhaustion and the interaction of these laws protecting students with disabilities.   

The Fifth Circuit recently joined the fray on this developing intersection of laws in Lartigue v. Northside Independent School District. The Fifth Circuit held that even though a hearing officer found that the district provided the student FAPE under the IDEA (and the student did not appeal that finding), the student might still be able to prove a violation of the ADA related to her accommodations. The decision scraps the previous understanding that the provision of IDEA FAPE was a defense to FAPE claims under Section 504 and the ADA. The school district has requested that the Fifth Circuit rehear the case en banc.

The Supreme Court Finds IDEA Exhaustion Not Required When Parents Seek Money Damages Under ADA and Section 504

In a unanimous decision, the Supreme Court held today that plaintiffs may file federal lawsuits under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 seeking money damages without first exhausting the IDEA administrative procedures, even when the underlying dispute is the student’s special education programming. As we previewed in a post following the oral argument, this decision is a departure from current Fifth Circuit law and opens the door to parents filing federal lawsuits seeking monetary relief in special education disputes without filing for due process under the IDEA. As explained below, whether this path is truly advantageous for parents is uncertain.

Can Districts Still Find Resolution After a Due Process Hearing Has Been Requested?

School districts and parents across Texas are regularly working together to ensure that the needs of students are met and that the district is providing a free appropriate public education (FAPE). Every child is unique; likewise, every Individualized Education Plan (IEP) is just as distinct. When a disagreement arises and disputes occur, the district and parents have the ability to go through various dispute resolution processes. The Texas Education Agency encourages and supports the resolution of any dispute that arises between the parent and a school district relating to the identification, evaluation, or educational placement of or the provision of a FAPE to a student.

Several options exist for resolving disputes at any level or stage. Some of those options include but are not limited to: ARD meetings; meetings or conferences with the student’s teacher, campus administrator, or special education director; mediation through TEA; and filing a complaint or due process hearing through TEA. Districts and parents utilize these formal and informal methods to problem solve and settle disagreements.

But once a parent has formally filed a request for a due process hearing, is there any hope left for resolution or are the parent and district forced to go through with a due process hearing before a hearing officer? The answer is, yes, there is hope for resolution before a due process hearing. In fact, the majority of due process hearing requests are resolved without a hearing.

Don’t Let a Request for an Independent Educational Evaluation Trip You Up!

To start, what is an independent educational evaluation (IEE)? An IEE is an evaluation conducted by a qualified evaluator who is not employed by the school district responsible for the education of the child. A parent or legal guardian has the right to request an IEE at public expense when the parent disagrees with an already completed evaluation done by the school.  

If your school receives a request for an IEE, you have only 2 options: 1) file a due process complaint to defend the appropriateness of the school’s evaluation, or 2) fund the requested IEE. But before you make that decision, you do want to check to make sure you are dealing with a proper request.