“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 case involved a student with a hearing impairment. The student’s IEP called for multiple accommodations as well as assistive technology to support her participation in the school program. The student alleged, however, that many of her accommodations were not provided in school and extracurricular activities. After a due process hearing, the hearing officer found the district provided the student with FAPE under the IDEA. The hearing officer did not rule on the Section 504 or ADA claims, as those were outside her jurisdiction. The student did not appeal the IDEA finding but continued a previously pending lawsuit alleging violations of the ADA (and other claims that were later dismissed).  

The Fifth Circuit agreed with the district court that the purpose of the IDEA due process hearing was to determine whether the district provided the student with an educational program reasonably calculated to enable the student to progress, whereas the ADA claim turned on whether the district discriminated against the student on account of her disability. Because of these different standards, the Court found that the provision of FAPE under the IDEA did not necessarily prove that the district complied with the ADA, though prior cases in the Fifth Circuit held that an appropriate program under the IDEA also met the ADA standard.  

In an amicus brief on behalf of the Texas Association of School Boards Legal Assistance Fund and National School Attorneys Association, Thompson & Horton attorneys argued that this precedent was controlling and that allowing relitigation of FAPE claims under the ADA was inefficient and unnecessary. 

In reaching its conclusion, the Court explained that the ADA requires districts to provide an equal opportunity to participate, ensure that communications with students with disabilities are as effective as communications with others, and give primary consideration to the accommodations and auxiliary aids requested by the individual with a disability. The Court said that in some cases these provisions may require something more than compliance with the IDEA. Note that the Ninth Circuit and the Department of Education previously reached a similar conclusion.  

Prior cases also require that to establish liability under the ADA, a plaintiff must show intentional discrimination. In the context of a challenged educational program (FAPE claim), that means more than denial of a reasonable accommodation, the plaintiff also needs to show that the denial was a gross departure from professional standards or taken in bad faith. The majority in Lartigue did not overrule (or address) this precedent. Accordingly, while the decision changes the analysis of whether the educational program provided by a district satisfies the ADA, it does not disturb the requirement that plaintiffs prove that a violation amounted to intentional discrimination to receive monetary damages.  

The dissent invokes Eminem for the proposition that “You only get one shot, do not miss your chance to blow – this opportunity comes once in a lifetime, yo.” and would have found that the hearing officer’s determination that the student received FAPE foreclosed the student’s ADA FAPE claim. (In addition to the catchy pop culture reference, the dissent also provided a well-reasoned explanation of the relevant precedent related to disability discrimination claims and issue preclusion.) 

Where does all of this leave schools? Unfortunately, this decision may prolong or complicate litigation when students raise FAPE claims under multiple statutes. To avoid these claims, schools should continue to provide students with disabilities with the services, accommodations, and modifications needed to enable appropriate progress as well as participation in the general education curriculum and environment to the greatest extent practicable. Additionally, schools should pay particular attention when considering accommodations, assistive technology, and other supports related to communication—noting the student’s preferred method and the effective communication standard.  

If you have questions about this case or other special education matters, please reach out to our Team.