In Service Dog Case, Supreme Court Holds that IDEA Procedures Need Not Be Exhausted if Complaint not Related to Denial of FAPE

February 2017
Number 10

On February 22, 2017, the United States Supreme Court issued a unanimous decision in Fry v. Napoleon Community Schools (2017) 580 U.S. ___ (Fry) that is expected to have a profound effect on the way lawsuits that arise under the Individuals with Disabilities Education Act (IDEA), Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) are litigated. The Court held that students with a disabilities are not required to exhaust the administrative remedies available to them under the IDEA prior to filing a federal district court case. The Court remanded this case for a determination of whether of the student’s claims arose under the ADA and Section 504 and were related to disability discrimination, or whether the claims might have arisen under the IDEA for the school district’s offer or provision of a free appropriate public education (FAPE).

The plaintiff in Fry is a child with a severe form of cerebral palsy who is assisted by a trained service dog in her various daily life activities. When the child entered kindergarten, her parents sought permission from her Michigan school district for the dog, “Wonder,” to accompany the child to school. The district refused the request, saying that because the child received human aide support pursuant to her Individualized Education Program (IEP), the presence of the service dog was unnecessary. In response to the decision, the child’s parents removed her from the school and began homeschooling her.

The child’s parents filed a complaint with the Department of Education’s Office for Civil Rights (OCR) alleging that the school district’s exclusion of the service dog constituted unlawful disability discrimination under the ADA and Section 504. OCR agreed and found that the school district’s exclusion of the animal constituted discrimination based on disability, and the child was invited to return to school with her service dog. However, the child’s parents instead enrolled her in a different school over fears of resentment from school officials. The child’s family then filed suit in federal court alleging solely disability-based discrimination under the ADA and Section 504. The family sought declaratory and monetary relief.

At the district court level (and as affirmed by the U.S. Court of Appeals for the Sixth Circuit), the family’s suit was dismissed on the basis that the IDEA requires a plaintiff bringing suit under the ADA and Section 504, and seeking relief that is also available under the IDEA, to “first exhaust the IDEA’s administrative procedures.” The Supreme Court vacated and remanded the decision to the Court of Appeals for a determination of whether plaintiff was actually claiming that she was denied a FAPE under the IDEA.

Previously, courts have held that where a plaintiff seeks relief that is available to them under the IDEA for a denial of FAPE, regardless of whether their particular claims arise under the IDEA, ADA or Section 504, the plaintiff must first exhaust the administrative remedies available under the IDEA. However here, where the plaintiff’s complaint alleged only disability-based discrimination – without any reference to the adequacy of her special education program – the Supreme Court found that administrative exhaustion requirement may not apply and remanded the case for adjudication under this standard.

The Court noted that in cases utilizing “artful pleading” to allege a denial of FAPE without phrasing it as such to avoid the IDEA exhaustion requirement, the essence of the case determines whether the complaint is subject to the exhaustion requirement. Two questions must be asked about a complaint that neither alleges only a denial of FAPE under the IDEA or discrimination in violation of the ADA and Section 504: (1) could the plaintiff have brought the same claim if the alleged misconduct had occurred at a public facility that is not a school and (2) could an adult at the same school have pursued essentially the same grievance?

If the answer to both questions is “yes,” unless the complaint expressly alleges a denial of FAPE, the cause of action is also unlikely to involve an alleged denial of FAPE under the IDEA. When the answer to these questions is “no,” the complaint more likely concerns a student’s receipt of FAPE, and is therefore subject to the exhaustion requirement. The history of the proceedings is also indicative of the essence of the complaint in the sense that, if the plaintiff previously pursued FAPE claims under the IDEA, this is “strong evidence” that the substance of the complaint truly concerns a denial of FAPE. The Supreme Court remanded the case back to the Court of Appeals, instructing the court to determine whether the family had invoked the IDEA dispute resolution procedures prior to filing suit.

It comes as no surprise that the concurring justices expressed concern that this standard would add to the confusion surrounding the IDEA exhaustion requirement. Nonetheless, the Fry decision seems to continue the judicial narrowing of the IDEA’s exhaustion requirement. In a similar case, the Ninth Circuit Court of Appeals held that the IDEA exhaustion requirement did not apply where a student sought only monetary damages under Section 1983 of the Civil Rights Act. (SeePayne v. Peninsula School District (9th Cir. 2011) 653 F.3d 863.) Taken together, these cases may create a more direct path for student plaintiffs to federal court on civil rights claims and those arising under the ADA and Section 504.

For more information on the Fry decision and its impact on IDEA, ADA and Section 504 claims, please contact an attorney in our Special Education Practice Group or at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Kyle A. Raney

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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New Federal Guidance Regarding Transgender Students Will Not Impact California Schools

February 2017
Number 9

Under new leadership following the 2016 presidential election, the United States Department of Justice (DOJ) and Department of Education (DOE) issued a joint “Dear Colleague” letter on February 22, 2017 withdrawing the Obama administration’s May 2016 letter and guidance regarding transgender students and sex-based discrimination under Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et. seq.) and Title IX’s regulations. The prior letter and guidance, consistent with the Obama administration’s enforcement of Title IX in school districts, provided that Title IX’s protections extended to transgender students, irrespective of that student’s sex assigned at birth, and included access to facilities like restrooms and locker rooms. (See 2016 Client News Brief No. 31 and July 25, 2016 article.)

The federal government’s new Dear Colleague letter includes a twofold explanation of the reasons for the rescission of the prior letter and guidance: (1) the prior letter and guidance lacked extensive or sufficient legal analysis to support the extension of Title IX protections to include access to sex-segregated facilities for transgender students; and (2) the DOJ and DOE desire to provide greater discretion to individual states regarding the issue of facilities use by transgender students, given the legal uncertainty and the fact that the prior guidance resulted in litigation in several states. One case involving the now rescinded May 2016 letter and guidance is currently pending before the United States Supreme Court. The Supreme Court has invited the parties in that case to submit letters addressing whether this new guidance impacts how the case should proceed.

Despite the withdrawal of the May 2016 Dear Colleague letter, the new federal guidance continues to emphasize a commitment to protect LGBT students from discrimination, bullying and harassment.

While the May 2016 federal letter and guidance are no longer in effect, California law, including Assembly Bill 1266 (Ed. Code, § 221.5(f)) and related non-discrimination provisions providing protections on the basis of gender identity (Ed. Code, §§ 220, 234.1, etc.), continues to control in the state. Likewise, the California Department of Education’s guidance on transgender youth in schools continues to stand. (See 2016 Lozano Smith Client News Brief No 16 .) Specifically, state law requires California school districts and other local education agencies to ensure transgender students’ rights consistent with, if not beyond, the previously issued and now rescinded federal letter and guidance.

If you have questions about the new Dear Colleague letter, its interaction with California law or state or federal law regarding transgender student rights in general, please contact an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Inna Volkova

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Change in Law May Require Shift to Even-Year Elections

February 2017
Number 8

In September 2015, Governor Jerry Brown signed into law Senate Bill (SB) 415. SB 415, which becomes operative on January 1, 2018, prohibits political subdivisions from holding odd-year regular elections if a prior odd-year election resulted in a “significant decrease in voter turnout,” as defined by statute. The new law reflects a policy of encouraging election consolidations to defray election costs and encourage voter participation. It applies only to regular elections and not to special elections.

Specifically, the new law, which is codified at Elections Code sections 14050 et seq., provides that a political subdivision (such as a city, school district, community college district or other district organized pursuant to state law) shall not hold an election other than on a statewide election date if holding an election on a “nonconcurrent date” has previously resulted in a “significant decrease in voter turnout.” “Nonconcurrent dates” are non-statewide election dates such as odd-year board member elections (or “off-cycle” election dates). A “significant decrease in voter turnout” is a voter turnout in a regular election in a political subdivision that is at least 25 percent less than the average voter turnout within that political subdivision for the previous four statewide general elections.

If a political subdivision has experienced such a “significant decrease in voter turnout” and is prohibited from holding future off-cycle elections, it may still hold off-cycle elections through 2021 if, by January 1, 2018, it has adopted a plan to consolidate a future election with a statewide election not later than the November 8, 2022 statewide general election.

In determining when to make the transition, political subdivisions should build in an administrative time buffer. In order to consolidate a currently-scheduled election into a general election, cities will need to enact an ordinance and seek approval from their county board of supervisors, among other requirements. Likewise, certain other categories of political subdivisions that wish to consolidate a currently-scheduled legislative body member election will need to adopt a resolution, seek approval from their county board of supervisors and comply with other statutory preconditions. Elections Code sections 10404 and 10404.5 provide that such a resolution must be adopted and submitted for approval no later than 240 days prior to the date of the currently-scheduled election. For an election scheduled in November 2017, the deadline for such actions would be March 13, 2017.

Political subdivisions should also consider the short-term effects of the transition. School districts, for example, which may now be able to hold Proposition 39 bond measure elections on an annual basis, will be limited to holding such elections once every two years once they transition to even-year election cycles. Political subdivisions should also be aware that consolidating elections to move them from odd to even years may affect the duration of their officers’ or board members’ terms. Consolidating school board elections, for example, will result in extending terms for current board members by one year.

A political subdivision that holds an odd-year election after January 1, 2018 without first adopting a transition plan can be sued by a voter within the political subdivision and compelled to comply with SB 415. If the voter prevails, the political subdivision will be liable for attorney’s fees and litigation expenses.

Lozano Smith has assisted political subdivisions with applying the 25 percent rule of SB 415 and with the mechanics of transitioning to even-year election cycles. If you have questions about compliance with SB 415 or any other issues impacting school districts and other local government entities, please contact an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Steven Nunes

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

County Boards of Education May Not Exempt Charter Schools from Local Zoning Regulations

February 2017
Number 7

A California Court of Appeal has held that a county board of education may not grant exemptions from zoning ordinances under Government Code section 53094. ( San Jose Unified School District v. Santa Clara County Office of
Education
(Jan 24, 2017, No. H041088) ___ Cal.App.5th ___ < http://www.courts. ca.gov/opinions/documents/H041088.PDF >.) Specifically, county boards may not exempt the charter schools they authorize from zoning ordinances. School districts have this power; county boards do not.

The Santa Clara County Office of Education granted Rocketship Education (“Rocketship”) a countywide charter to operate up to 25 charter elementary schools within the county. Rocketship proposed to locate one of its elementary schools on property that was owned by the City of San Jose (“City”) and not zoned for school use. The proposed property was located within the jurisdiction of the San Jose Unified School District (“District”), but was zoned only for open space, parklands and habitat. Because the City’s General Plan prohibited operating a school on the property, the Santa Clara County Board of Education granted Rocketship an exemption to the City’s zoning ordinance under Government Code section 53094.

Under the language of Government Code section 53094, subdivision (b), only the “governing board of a school district” may grant zoning exemptions. The San Jose Unified School District and a local property owner filed separate petitions for writs of mandate seeking to invalidate the exemption. They argued that county boards of education are not school district governing boards, and lack authority to exempt property from local zoning laws. The trial court granted the District’s writ petition and ordered the County Office of Education to rescind Rocketship’s zoning exemption – thus leaving Rocketship without a school site.

The Court of Appeal upheld the trial court’s decision. In reaching its conclusion, the appellate court relied on the legislative history of section 53094, which was enacted in response to the decisions inHall v. City of Taft (1956) 47 Cal.2d 177 andTown of Atherton v. Superior Court (1958) 159 Cal.App.2d 417.Hall and Atherton generally held that school districts engage in sovereign activities of the state when they design and construct school facilities, and therefore are not required to comply with local zoning ordinances in designating school locations. These cases, however, unwittingly immunized a large number of state agencies from local regulation, and section 53094 was passed to narrow this exemption authority specifically to local school districts.

The court noted that, although county offices of education have authority to grant charter petitions and oversee charter schools, it is local school districts that are obligated to provide charter school facilities under Proposition 39 (Ed. Code, § 47614, subd. (b).) Because a county office of education does not bear responsibility to acquire sites for charter schools, it does not perform a sovereign activity on behalf of the state if it chooses to do so. This is because the state has tasked districts, not county offices of education, with such responsibility. Therefore, empowering county boards of education to issue zoning exemptions would not advance section 53094’s purpose – namely, preventing local interference with the state’s sovereign activities.

While each charter school’s situation is unique, this decision will likely impact the siting of county-authorized charter schools and require increased collaboration between government entities when zoning serves as an impediment to locating a charter school facility.

For more information on the San Jose Unified School District opinion or the Charter Schools Act, please contact the authors of this Client News Brief or an attorney in Lozano Smith’s Charter School Practice Group or at one of our nine offices located statewide. You can also visit our website , follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Edward Sklar

Partner

Erin Hamor

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Reaffirms Undocumented Students’ Eligibility for Higher Education Aid Programs

February 2017
Number 6

The Second District Court of Appeal has rejected arguments that sought to bar the University of California (UC) from making certain financial aid programs available to undocumented students. In decidingDe Vries v. Regents of University of California (2016) 6 Cal.App.5th 574, the appellate court has reaffirmed undocumented students’ eligibility for such programs.

As some colleges express concern about the potential for federal policies that could impact their undocumented students, De Vries builds on the existing body of law that enables California’s higher education institutions to provide support for such students.

In its December 9, 2016 decision, the Court of Appeal held that three laws that aid undocumented students apply to those attending UC: Assembly Bill (AB) 540 (2001), which allows certain undocumented students to qualify for resident fees; AB 131 (2011), which makes undocumented students eligible for state aid programs; and SB 1210 (2014), which allows undocumented students to participate in student loan programs. The taxpayer plaintiff filed suit in Los Angeles County Superior Court challenging the legality of these programs at UC. The trial court dismissed the suit, and the Court of Appeal affirmed that decision.

Central to the case is a federal law, 28 U.S.C. section 1621(d), which states that undocumented immigrants may be “eligible for any state or local public benefit,” including those related to postsecondary education, “only through the enactment of a State law … which affirmatively provides for such eligibility.” The plaintiff argued that under section 1621(d), such a state law must directly grant a benefit to the students, but that the three state laws at issue only granted the benefits they confer to students at California State University and the state’s community colleges, and not to students attending a UC. The plaintiff in De Vries then honed in on the unique status of UC under the California Constitution, which grants its Board of Regents “broad powers to organize and govern the university and limits the Legislature’s power to regulate either the university or the regents.” The plaintiff insisted that the three state laws in question do not, and cannot, affirmatively provide for any benefit to students at UC as required under section 1621(d) because the Legislature cannot legislate UC and UC cannot otherwise enact a state law.

The Court of Appeal rejected these arguments. First, the court held that section 1621(d) “requires only that state law provide eligibility for undocumented immigrants to receive public benefits. It does not require that state law confer such benefits on eligible persons or mandate that any other entity do so.” Therefore, because AB 540, AB 131 and SB 1210 complied with section 1621(d) by making undocumented students eligible for the benefits of these respective laws, UC itself could adopt policies that opted its students into such programs. Speaking directly to AB 540, for example, the court reasoned that the law “removed the federal barrier to making undocumented immigrants eligible for the exemption from nonresident tuition, and the Regents conferred that benefit on qualified UC students. Nothing in section 1621(d), California’s Constitution, or AB 540 requires more.” Moreover, the “legislative deference to the University’s constitutional status does not affect the Legislature’s express intent to make UC students eligible for the exemption from nonresident tuition.” UC students are not entitled to that benefit unless the University of California elects to provide it.” Likewise, AB 131 and SB 1210 “provide eligibility for the specified benefits to those students, regardless of whether the University ultimately confers such benefits on them.”

The De Vries decision adds to existing legal precedent that affirms the state’s ability to make higher education programs available to undocumented students. If you have any questions regarding such programs or appropriate guidelines for related resolutions and policies, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App .

Written by:

Michelle Cannon

Partner

Steve Ngo

Senior Counsel

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.