Schools & School Boards – Civil Rights – Disability Discrimination – Administrative – No Exhaustion Required

The parent of an autistic student seeks, not to have the defendant-school district pay for anything, but to have the school district merely allow the student’s therapist accompany him to school. Since plaintiffs are not suing to receive anything free in the student’s appropriate public education, they are not bound by the Individuals with Disabilities Education Act’s requirement of an exhaustion of administrative remedies. The district court has subject matter jurisdiction over plaintiffs’ claims under the Rehabilitation Act and Title II of the Americans with Disabilities Act.

We reverse the district court’s grant of defendant’s motion to dismiss.

Student Z.W. has been diagnosed with autism spectrum disorder, language disorder and anxiety, and a psychologist has recommended Applied Behavior Analysis (ABA) therapy. Plaintiffs’ private insurance would pay for an ABA therapist to accompany Z.W. to school and treat him throughout the day.

The defendant-school district denied plaintiffs’ first three requests to allow Z.W. to be accompanied at school by an ABA therapist at no cost to the school. The school district ignored plaintiffs’ fourth request. Without pursuing administrative remedies under the IDEA, plaintiffs filed suit under the Rehabilitation Act and the ADA, with no mention of the IDEA or a free appropriate public education (FAPE).

Pursuant to 20 U.S.C. § 1415(l), before a plaintiff may file “a civil action” under the ADA or the Rehabilitation Act “seeking relief that is also available under” the IDEA, the plaintiff must “exhaust[]” the IDEA’s administrative procedures “to the same extent as would be required had the action been brought under” the IDEA. For ADA or Rehabilitation Act claims, the exhaustion inquiry “hinges on whether a lawsuit seeks relief for the denial of” the IDEA’s “sine qua non”: a FAPE.

In answering that question, the Supreme Court has told us to look to the substance, or gravamen, of the plaintiff’s complaint to determine whether it concerns the denial of a FAPE, or instead addresses disability-based discrimination. The Court also identified two hypothetical questions that provide a clue on which side of the line a given case falls.

First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? Second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance? When, as here, the answer to both questions is “yes,” it is unlikely a complaint that does not expressly allege the denial of a FAPE is truly about that subject.

The essence of Z.W.’s beef with the school district is its refusal to permit him to bring his privately supplied and funded ABA therapist to school with him. Z.W. could file essentially the same claim against a library, a museum, or a summer camp. What is more, a non-student visitor (say, a friend, sibling, or other relative) could make a largely identical claim against the school district if it refused to permit an ABA therapist to accompany the visitor to Z.W.’s school.

The only substantive right created by the IDEA is to a “free appropriate public education,” 20 U.S.C. § 1401(9), and the only relief available during the IDEA’s administrative process are measures designed to vindicate that right. Because Z.W.’s complaint requests nothing that would 10 be “provided at public expense . . . and without charge” to him and his parents, § 1401(9), its crux does not appear to concern the denial of a FAPE in either surface or substance.

Reversed and remanded.

Z.W. v. Horry County School District (Lawyers Weekly No. 001-064-23, 10 pp.) (Toby Heytens, J.) No. 21-1596. Appealed from USDC at Florence, S.C. (Joseph Dawson, J.) Mary Skahan Willis and Michael Ethridge for appellants; Kevin Alan Hall, Todd Carroll and Bryant Caldwell for appellee. United States Court of Appeals for the Fourth Circuit