Since the death of Justice Antonin Scalia on February 13, the rate at which the Justices granted review in new cases has slowed significantly. But one new case that could make it on to the Court’s docket for next Term is Fry v. Napoleon Community Schools, in which the federal government recently filed a brief recommending that certiorari be granted.
Stacy and Brent Fry are the parents of a daughter, known as “E.F.” to protect her privacy. At the age of five, E.F. – who has cerebral palsy, which limits her motor skills – received a service dog: a goldendoodle named Wonder, trained with dog toys to help with everything from turning lights on and off to taking off E.F.’s coat. However, the Michigan school district in which E.F. attended school refused to allow her to bring Wonder with her; in its view, she had enough support from her human aide.
In December 2012, the Frys filed a lawsuit under the Americans with Disabilities Act and the Rehabilitation Act. The ADA bars state and local governments from discriminating against individuals with a disability, while the Rehabilitation Act bars discrimination because of a disability by institutions or entities that receive financial assistance from the federal government. The Frys sought damages “for the social and emotional harm caused by the” school district’s refusal to allow E.F. to bring Wonder to school with her.
The district court dismissed the case, on the ground that the Frys had failed to comply with the Handicapped Children’s Protection Act of 1986. A provision of that law requires would-be plaintiffs to pursue state administrative remedies under the Individuals with Disabilities Education Act before going to court, even if their lawsuits are not based on the IDEA, if they are “seeking relief that is also available under” the IDEA.
The U.S. Court of Appeals for the Sixth Circuit affirmed. It concluded that, although the Frys’ lawsuit sought damages, which are not available under the IDEA, they still needed to exhaust the available state administrative remedies. Otherwise, the court of appeals reasoned, plaintiffs could circumvent the exhaustion requirement simply by adding a damages claim.
In fall 2015, the Frys filed a petition seeking Supreme Court review of the Sixth Circuit’s decision; in January of this year, the Court asked the federal government to weigh in.
In a brief filed last week, the federal government agreed with the Frys that the Court should grant review. The Sixth Circuit’s decision, the government told the Court, “deepens an entrenched” split among the federal courts of appeals over how to interpret the exhaustion requirement. Moreover, it continued, the Sixth Circuit’s interpretation of the exhaustion requirement is “at odds with the plain text” of the provision, which “makes clear” that the IDEA is not the only avenue available for lawsuits on behalf of children with disabilities. Instead, it applies only to “civil actions” “seeking relief that is also available under” the IDEA: if the relief that the plaintiffs are seeking is not available under the IDEA, the government contended, they are simply not required to go through the state administrative process.
In E.F.’s case, the government explained, the Frys alleged only that the school district refused to change their policies to allow E.F. to bring Wonder to school; nothing in their lawsuit mentioned the IDEA, and their complaint asked only for money damages and declaratory relief – relief that is not available under the IDEA. Indeed, the government suggested, there is no reason to require the family to go through the exhaustion requirement, because even if they won on all issues related to the IDEA, they “would have had to file exactly the same suit under” the ADA and the Rehabilitation Act.
The school district will have the opportunity to respond to the federal government’s brief. The Court is likely to announce before its summer recess whether it will review the case on the merits.