As many of you know, Autism Speaks filed an amicus brief in the Fry case in support of the parents’ position, which is that parents should NOT have to first exhaust all their administrative remedies if the claim sought to be asserted cannot be adjudicated in the context of an administrative proceeding. I had identified Fry as an important case for AS to weigh in on as part of my role as the Director of AS’s Federal Legal Appeals Project. Here is my initial report and analysis of the court’s questions and statements, recognizing that until the decision actually issues, anything can happen.
The argument got off to a relatively rocky start. The Fry family’s counsel was excellent, answering the court’s tough questions with facts and the kind of confidence that only comes with experience. The questioning became even more challenging and intense when the school district’s counsel came up to the podium. Every one of the eight justices, other than Justice Thomas, had at least one question or comment.
It seemed to me that while the court will likely reverse Fry on its facts, the court is very concerned about creating excessive limitations or exceptions to the exhaustion doctrine. Several justices spoke of the need to look at the “gravamen” of the claims being asserted, i.e., the need to focus on the core nature of the claims. Several justices noted their concern to green light a “two track” system of litigation. Still, many of the justices seemed to agree that there are claims that simply cannot be adjudicated as IDEA claims. Justice Kagan provided a compelling hypothetical involving access to a library versus access to a school. The ADA, of course, focuses on reasonable accommodations to gain access.
It seemed clear that the “futility” exception to the exhaustion doctrine will continue to be recognized. The real question is how far the high court will go in recognizing additional limits to the exhaustion doctrine beyond the “futility” exception and the unique facts of this case.