Fry v. Napoleon Community Schools Page 2

Fry v. Napoleon Community Schools general information

Media for Fry v. Napoleon Community Schools

Audio Transcription for Oral Argument - October 31, 2016 in Fry v. Napoleon Community Schools

Samuel R. Bagenstos:

Right, these -- these are overlapping --

Stephen G. Breyer:

That's true, but --

Samuel R. Bagenstos:


Stephen G. Breyer:

-- you could find -- I mean, in -- I have exactly the same question, in a very large number of suits, you know, in a very large number of suits brought -- or controversies -- where a child is seeking a special plan, there is a statute that gives him that right, and it rests -- rests heavily on his getting together or his parents getting together with the school board and trying to work something out that makes sense. Now, it seems to me, as the Chief Justice just said, that if we accept your first argument, not in all cases, but in many cases, where their lawyer wishes to avoid this exhaustion requirement, all he would have to do is wait and then sue, not for putting the child in a private school but rather for emotional suffering. Now, if that argument -- if what I have just said is right, which I think is what was just said by the Chief Justice, that would seem to gut the carefully written procedural system that the IDEA sets up.

And that's what is concerning me, and I don't think the word "relief" has to be read in the technical way in which you're reading it.

Samuel R. Bagenstos:

Well, so -- so I think this goes not just to what the word "relief" actually says. I think, you know, this is a highly carefully crafted procedural regime as Your Honor says, Justice Breyer. But part of the careful crafting of the regime is the Handicapped Children's Protection Act which, remember, overruled a decision of this Court or overturned a decision of this Court that had sought to channel all disability education claims into IDEA proceedings. What Congress said in the HCPA was there are other statutes that may provide independent remedies under -- at that point it was the Rehabilitation Act Section 1983.

Congress later added the ADA to that list, and those cases may be pursued independently, said Congress, so long as the plaintiffs are not actually seeking anything they can get in IDEA proceedings.

Stephen G. Breyer:

The answer to me, and I think to the Chief, so far is, so what? Because that's what Congress wanted.

Is there any answer other than that?

Samuel R. Bagenstos:

Well, so I -- I mean, I think there are a couple of answers other than that.

I do think -- I do think it's what Congress wanted, and I think if you look at both the text and the legislative history, Senator Weicker's brief goes through this, shows that it's what Congress wanted. But, in addition to that, yes, I think there -- there is -- there's a lot of reason to believe, and we have an amicus brief here from former special education administrators Thomas Hehir, Melody Musgrove, and -- and -- and Madeline Will, who specifically say, look, we think that what parents are going to do based on our experience is go through IDEA procedures, because what they want is to get the relief that's available in IDEA proceedings. There are some cases, like this case, like the Fry case -- or I'm sorry -- like the Payne case in the Ninth Circuit, where you have a case of abuse, where the principal injuries are not injuries to education, they are emotional injuries.

Those are the cases that are going to proceed to court.

So I think it's --

John G. Roberts, Jr.:

I guess that's why -- but even if what you say is right, and it makes a lot of sense, a lawyer advising a client might advise that, look, this is what you want the school to do so that you can have a free and appropriate education for your child.

You will have a lot more leverage getting the school to do that if you also sue them under the ADA and Section 504, and the school board is sitting there looking at it and say, gosh, we are not only exposed to what relief is under the IDEA, but we are going to have to pay damages.

You understand my point?

Samuel R. Bagenstos:

I do.

John G. Roberts, Jr.:

As a practical matter, it would be -- could well be in the child's and parents' interest to proceed along two tracks because it makes it much more likely, even if what all they really want, they don't care about the money.

They really care about education for their child.

Samuel R. Bagenstos:

But I think the point about that -- I think that is right about a lot of practical issues here.

The crucial point there is that exhaustion does not change the leverage that the plaintiffs have here, right? So even under the Sixth Circuit's rule, the plaintiffs, our clients, could have exhausted IDEA proceedings, said at the time we filed an IDEA administrative complaint, by the way, school district, we are also going to sue you under the ADA and Rehabilitation Act for damages.

John G. Roberts, Jr.:

Later on, once we are done with this.

Samuel R. Bagenstos:

Once we are done with this. And --

John G. Roberts, Jr.:

I think one of the important things in this type of proceeding is timing, right? I mean, we are talking about a school year, and all this takes time.

So the idea that well, when all this ends, you know, who knows, I mean, it gathers a debate about how quickly these things are resolved, then we might bring this.

But if you do it at the same time, that gives you the leverage when you need it to get the accomodation in place that you want for the child.

Samuel R. Bagenstos:

Well, Your Honor, I think there are obviously a lot of variables.

I think a lot of defense lawyers would certainly say being threatened with long, drawn-out proceedings at the end of which is a damages award is pretty significant leverage as well. And I think the point is that time also works both ways here, right? One of the things that Congress was trying to do in the HCPA was recognize that the ADA and Rehabilitation Act in 1983 are independent, and requiring parents to first proceed through what are likely to be time-consuming proceedings under a separate statute, the IDEA, that can't give them the relief that they are seeking under those independent statutes.

Anthony M. Kennedy:

But your whole point again is it depends on what's in the complaint.

And the statute says that before a filing of a civil action, you have to exhaust.