Tenth Circuit on IDEA Exhaustion, and IDEA's Relationship with the ADA and Rehabilitation Act

Yesterday, the Tenth Circuit issued its opinion in Ellenberg v. New Mexico Military Institute. The case involved a teenager who applied to the New Mexico Military Institute (a state secondary school) and was rejected because of a psychiatric disability. She brought suit under the IDEA, the ADA, and the Rehabilitation Act. The Tenth Circuit held that, because she had not challenged the NMMI's decision through the IEP process, her IDEA claim had to be dismissed on exhaustion grounds. Along the way, the court made the following tangential observation, which is sure to be quoted a lot by states and school districts:

The Ellenbergs misunderstand the IDEA. In their brief, which relies heavily on anti-discrimination hyperbole, they view the IDEA as a virtual treasure trove providing disabled children with a limitless number of substantive rights. The IDEA, however, is not so broad. It is a spending statute that imposes obligations on the states to provide certain benefits in exchange for federal funds. See Rowley, 458 U.S. at 204 n. 26. Although “Congress has broad power to set the terms on which it disburses federal money to the States, ... when Congress attaches conditions to a State's acceptance of federal funds, the conditions must be set out ‘unambiguously.’ “ Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S.Ct. 2455, 2459 (2006) (internal citation omitted). Courts engage in a two-step inquiry to determine if a state has satisfied its substantive IDEA obligations. “First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?” Rowley, 458 U.S. at 206-07. If the answer to both is yes, “the State has complied with the obligations imposed by Congress and the courts can require no more.” Id. at 207.

Citing the IDEA's 30-year old requirement that states “establish[ ] a goal of providing full educational opportunity to all children with disabilities,” see 20 U.S.C. § 1412(a)(2), plaintiffs argue that the IDEA requires absolute educational equality. In support, they point to language contained in Congress' recent reauthorization of the IDEA, specifically Congress' finding that it is in the “national interest that the Federal Government have a supporting role in assisting State and local efforts to educate children with disabilities in order to improve results for such children and to ensure equal protection of the law.” 20 U.S.C. § 1400(c)(6) (2005). Plaintiffs, however, have not presented us with a single case from any court recognizing a legally cognizable anti-discrimination claim brought under the IDEA.^FN10 Moreover, the Supreme Court has explicitly rejected a similar attempt to transform the IDEA into an anti-discrimination vehicle in a 30-year old case, the very case cited by plaintiffs in support of their view. See Rowley, 458 U.S. at 198 (noting that in passing the IDEA Congress did not intend “to achieve strict equality of opportunity or services” and further holding “the requirement that a state provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child's potential ‘commensurate with the opportunity provided other children.’ ”); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 623 n. 6 (1999) (Thomas, J., dissenting) (noting that the IDEA is not a general anti-discrimination statute).

But that observation wasn't all bad for the Ellenberg's: Because their ADA and Rehabilitation Act claims were purely antidiscrimination claims, the court concluded that those claims could proceed, notwithstanding the failure to exhaust the IDEA claim. The court's language on this point is sure to be quoted a lot by parents:

[E]xempting plaintiffs from exhaustion in this circumstance prevents inefficiency and waste of judicial resources. Limited obligations are imposed on states under the IDEA. Educational experts who develop IEPs must identify the students' LRE and select an educational placement, but they do not decide which schools a student is otherwise qualified to attend. Administrative officers reviewing plaintiffs' IDEA claims must consider the same limited questions that we ask: (1) Has the student been given a FAPE?; and (2) Was the student given a FAPE in the least restrictive environment? Rowley, 450 U.S. at 206-07. At no point would the administrative process offer insight into the merits of a discrimination claim. Requiring exhaustion before the Ellenbergs could pursue their claims under the ADA and RA would create an anomalous result: Plaintiffs who concede a students' IDEA rights have not been violated, or have settled the IDEA claims, would be required to craft an IDEA claim and proceed through the state administrative process to determine if the students' IDEA rights have been violated. See W.B. v. Matula, 67 F.3d 484, 496 (3d Cir.1995) (recognizing that plaintiffs would not be required to use the IDEA's administrative framework when they have settled their IDEA claims).

Turning to the merits of the RA and ADA claims, contrary to NMMI's suggestion, our precedent does not hold that a party's discrimination claims under the RA and the ADA must automatically be dismissed if an IDEA claim fails.^FN22 Any other interpretation of our caselaw would mean that a state educational institution that receives public funding could openly discriminate against applicants with disabilities so long as the state offered the student a FAPE in the least restrictive environment. Thus, even if plaintiffs conceded that New Mexico fully satisfied its IDEA obligations with respect to S.E., they could pursue claims under the ADA and the RA on the grounds that S.E. was precluded from receiving a state benefit-military-style education-provided to her non-disabled peers.