Student with disability can sue before exhausting administrative remedies

A student with disabilities does not have to first exhaust state administrative remedies before filing a disability discrimination lawsuit against a school district, a federal appeals court ruled on Friday, in overturning a lower court ruling.

Z.W., an elementary school student, was diagnosed with autism spectrum disorder, language disorder and anxiety in 2017, according to the ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in Z.W. v. Horry County School District and Does 1-10.

Between 2017 and 2021, his parents asked the Conway, South Carolina-based Horry County School district at least four times to allow their son to be accompanied at school by an Applied Behavior Analysis therapist at no cost to the school district, the ruling said. The school district denied the first three requests and did not respond to the fourth.

The boy’s father filed suit in U.S. District Court in Florence, South Carolina, alleging the school district had violated the Americans with Disabilities Act and the Rehabilitation Act by refusing to accommodate Z.W.’s request to have a therapist accompany him at school.

The district court ruled against the parents, holding Z.W. needed to exhaust administrative remedies under the Individuals with Disabilities Education Act before filing the lawsuit. The IDEA promises students with disabilities a “free appropriate public education.”

It was reversed by a three-judge appeals court panel, citing the U.S. Supreme Court’s 2017 ruling in Fry v. Napolean Community Schools, which held that a student or family suing a school district over a disability-related issue does not always have to exhaust all the procedures under the IDEA before going to court.

The only substantive right created by the IDEA is to a ‘free appropriate public education’ … and the only relief available during the IDEA’s administrative process are measures designed to vindicate that right,” the appeals panel said.

“Because Z.W.’s complaint requests nothing that would be ‘provided at public expense….and without charge’ to him and his parents…its ‘essence’ or ‘crux’ does not appear” to concern a free appropriate public education under the IDEA, the ruling said, in remanding the case for further proceedings.

Attorneys in the case did not respond to requests for comment.



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