Today, the Supreme Court issued its ruling in Fry v. Napoleon Community Schools. The Court unanimously held that a child with cerebral palsy, whose service dog was barred from attending school with her, could sue her school district under the Americans with Disabilities Act without first exhausting the administrative remedies laid out in another law, the Individuals with Disabilities Education Act.
The case hinged on fairly obscure technical issues in the IDEA law itself. But it touches on a subject that Judge Neil Gorsuch has seen often on the 10th Circuit, and has written at least three opinions on. Gorsuch, of course, is President Trump’s nominee to serve alongside the other eight justices, and his confirmation hearings begin March 20.
The Gorsuch case most similar to this one — another IDEA/ADA case — could well come up during those hearings. In A.F. v. Espanola Public Schools, the plaintiff before the 10th Circuit was ultimately not allowed to bring an ADA lawsuit. Her mother had filed an IDEA complaint with the school district because her disabled child’s education was not being appropriately attended to. But after quickly accepting a mediated settlement with her school district and abandoning the IDEA claim, she immediately turned around and re-filed the same claim as an ADA lawsuit, alleging again that her disabled child was being denied a “free, appropriate public education,” the requirement under IDEA.
In his 2-1 opinion in Espanola, Gorsuch acknowledged that IDEA does allow claims under both of these federal laws in some circumstances. But he ruled that the plaintiff could not just abandon her IDEA complaint and then sue under ADA (this time also seeking money) without first exhausting all of the administrative remedies under IDEA — that is, going through the entire adjudication process and failing to reach an acceptable agreement with the school district.
“[T]o earn the right to bring a civil action under IDEA, it’s just an implacable fact that you must qualify…as a party ‘aggrieved by the findings and decision’ of administrative trial or appellate authorities,” Gorsuch wrote, citing the language of the statute. He noted further that the law says “that to bring a civil action under [another] federal law seeking the same relief IDEA supplies, you must exhaust the procedures…’to the same extent’ as you must to bring a civil action under IDEA itself.”
Justice Elena Kagan made exactly the same point as Gorsuch in her opinion. The requirement to exhaust the IDEA process, she writes,
…hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education. If a lawsuit charges such a denial, the plaintiff cannot escape [the exhaustion requirement] merely by bringing her suit under a statute other than the IDEA[.]
The reason Fry ended with a different outcome was that the justices unanimously agreed Fry’s ADA lawsuit was not about her getting a “free, appropriate public education” at all. Rather, it was about her being denied access to a public facility. Therefore, there was no requirement to go through the entire IDEA process before suing under ADA. It was, as Justice Kagan put it, the same kind of case that could have been brought against a library or theater that had barred the plaintiff’s service dog.
There was one point, though, where Kagan’s reasoning might someday collide with Gorsuch’s. In two footnotes, she pointed out that her opinion is silent on whether any IDEA case can go forward under the ADA just because it seeks monetary damages, not just an educational remedy. In his opinion in Espanola, Gorsuch had cited 10th Circuit precedent in ruling that this didn’t matter. The dissenting judge in the case did not directly dispute that point.
As technical as it is, the interplay between IDEA and the ADA is a very contentious issue that seems to come up often in federal court. It’s also become one of the talking points against Gorsuch — voiced by, among others, House Minority Leader Nany Pelosi. She garbled the talking point a bit, though, in stating that “he’s come down against” autistic children “under the ADA, as well, and again under IDEA.” (The reference to autism has to do with a different Gorsuch opinion that didn’t involve the ADA.)
In any case, don’t be surprised if Gorsuch is asked to discuss this issue in his confirmation hearings next month.
