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Exhaustion of Administrative Remedies May Not Apply to Section 504 Claims

By on September 29, 2020 in Special Education/504 with 0 Comments

On September 23, 2020, the Ninth Circuit Court of Appeals ruled in McIntyre v. Eugene School District that the exhaustion of administrative remedies is not required when the claims do not allege a denial of a free appropriate public education (“FAPE”) as defined by the Individuals with Disabilities Education Act (“IDEA”). The case involved a student with attention deficit disorder who alleged that her school district violated Section 504 of the Rehabilitation Act and the Americans with Disabilities Act when it did not provide her with disability-related testing accommodations and failed to follow an emergency health protocol.

In the complaint, the student did not expressly allege a denial of FAPE. Instead, it alleged that the school district failed to provide her with reasonable accommodations and discriminated against her by failing to provide her with those reasonable accommodations and creating a hostile learning environment. The student was eligible for a Section 504 plan but did not have an individualized education program (“IEP”). The complaint did not seek compensatory education. Instead, it sought declaratory and injunctive relief, economic and noneconomic money damages, and reasonable attorneys’ fees and costs.

The student’s complaint was dismissed by the federal District Court, which relied upon the 2017 United States Supreme Court case Fry v. Napoleon Community Schools. The District Court interpreted the student’s complaint as primarily involving FAPE, and therefore exhaustion of administrative remedies was required. On appeal, the Ninth Circuit disagreed.

Instead, the Ninth Circuit found that the student’s Complaint sought relief for the denial of equal access to her education as opposed to a denial of FAPE. The Ninth Circuit relied upon the fact that the student did not have an IEP and that the testing accommodations and the health protocol in the Section 504 did not constitute special education for which FAPE is required.


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About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.


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