In a recent decision interpreting the intricacies of Section 504 of the Rehabilitation Act, 29 U.S.C. §794, and Section 1415(l) of the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. 1415(l), a split panel of the United States Court of Appeals for the First Circuit determined that a claim for damages resulting from a school district's refusal to accommodate a child's service dog did not require exhaustion of administrative remedies as a prerequisite to bringing suit.

The majority opinion, heavily analyzing the 2017 Supreme Court decision in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017), determined that the harm alleged by the school district's actions did not involve the denial of a free appropriate public education ("FAPE"), which would require exhaustion, but rather simple discrimination, compensable by the Rehabilitation Act. A sharply worded dissent criticized the majority opinion for viewing the plaintiffs' discrimination claim independently, as opposed to in composite with their other claims that more clearly appeared to claim the denial of a FAPE. The majority opinion clarifies and acknowledges that protections of non-FAPE rights in schools must be held separately from IDEA's exhaustion requirements. This decision will assist future student-plaintiffs with recognizing their rights to rapidly obtain judicial intervention in the face of discriminatory, yet non-FAPE oriented rights.

On Aug. 26, 2019, the Honorable Kermit V. Lipez authored a decision reviving a family's claims under the Rehabilitation Act against their school district for the discriminatory restriction of access to the child's service dog while at school. Doucette v. Georgetown Pub. Sch., 2019 U.S. App. LEXIS 25583, at *33-*34, __ F.3d __ (1st Cir. Aug. 26, 2019). Despite staunch resistance in a dissent from the Honorable Bruce M. Selya, the majority opinion concluded that the gravamen of the Doucettes' claims focused on the denial of non-discriminatory access to a public institution, not the denial of a FAPE, and so their claims were not subject to more onerous exhaustion requirements of IDEA. See 20 U.S.C. §§1415(l). (While a fair portion of the opinion considers the plaintiffs' §1983 claims, this article focuses on the interplay between the Rehabilitation Act and IDEA.)

By way of background, Rachel and Michael Doucette enrolled their child, B.D., in Perley Elementary School from July 2009 until August 2012, when he was between the ages of three and six years old. B.D. suffers from a rare genetic disorder, Isodiocentric Chromosome 15q Duplication Syndrome, which manifests itself in B.D.'s case through a host of symptoms including developmental delay, frequent choking, cognitive impairment, communication deficits, autism spectrum disorder, epilepsy and other problems. Given his disabilities, B.D. had an individualized education program ("IEP") which mandated one-on-one attention, a consistent routine, a seizure plan, and a year-round school program.

B.D. had a difficult time at school, even with his IEP. In an attempt to alleviate B.D.'s circumstances, his parents arranged for B.D. to begin working with a certified service dog in the fall of 2011. Upon their request that the school district permit the dog to accompany B.D. at school as a disability accommodation, the school district refused. The school denied B.D. access to the dog during the year but ordered a behavioral assessment, to take place in the fall of 2012, to determine whether the IEP should be amended to include the dog.

That summer, as part of his extended schooling, B.D. was placed in an unfamiliar building for school, despite his IEP requiring consistency and routine. B.D. suffered a very serious "tonic-clonic" seizure, requiring hospitalization. The school district continued to educate B.D. in the same environment for the remainder of the summer, without providing access to his service dog. Over the course of the summer, B.D. suffered three more tonic-clonic seizures, with at least two of them requiring hospitalization. The school district failed to allow access to the service dog or to permit an alternative school placement for B.D. The Doucettes removed B.D. from the school and demanded a change of district, but the school refused to provide alternative placement, instead advising that B.D. was expected to attend school in the fall of 2012, and that "extended absences [would] be considered truancy." Doucette, 2019 U.S. App. LEXIS 25583, at *9. B.D. attended the first day of the fall term and suffered a fifth tonic-clonic seizure that day, requiring hospitalization. At this point, the school district finally agreed to evaluate an out-of-district placement for B.D., which was eventually approved. B.D. has experienced no seizures since his removal from the school district.

The Doucettes filed suit alleging, inter alia, a claim under Section 504 of the Rehabilitation Act for discrimination by refusing B.D. access to his service dog. The district court entered judgment against the Doucettes on the basis of their failure to exhaust IDEA's administrative remedies.

Although the Doucettes did not allege claims under IDEA, the statute contains a provision which requires various claims that seek relief also available under IDEA, including those under section 504 of the Rehabilitation Act, to exhaust the same administrative procedures that would have been in place if the claim had been brought under IDEA. See 20 U.S.C. §1415(l). Thus, the core issue before the court became whether or not the relief sought by the Doucettes could also have been obtained through IDEA.

The majority decision engaged in an admirably detailed analysis of the distinction between the Rehabilitation Act and IDEA, with reference to the Americans with Disabilities Act ("ADA") as well. In short, the key distinction between the three laws is that IDEA ensures children with disabilities have available to them a FAPE, while the Rehabilitation Act and the ADA prohibit discrimination on the basis of disability in programs and activities receiving federal financial assistance (Rehabilitation Act), and on the basis of disability in employment, public services and accommodations (ADA).

Utilizing a comprehensive analysis of the recent Supreme Court case Fry v. Napoleon Cmty Sch., 137 S.Ct. 743 (2017), the majority opinion stated that "if a school refused to make an accommodation for a disabled child, injuring the child in ways unrelated to a FAPE, a plaintiff seeking redress for those other harms … is not subject to [IDEA]'s exhaustion rule." Doucette, 2019 U.S. App. LEXIS, at *12-*13 (internal quotations and citations omitted). The majority thus found that in this instance, denying B.D. access to his service dog, causing him to suffer seizures, is not the denial of a FAPE, but "simple discrimination" thus excusing IDEA's exhaustion requirements. As such, the fact that the Doucettes did not bring their grievance to a formal administrative hearing did not prevent them from bringing claims under the Rehabilitation Act.

The dissent sharply disagreed, noting the numerous allegations in the complaint regarding deficiencies in B.D.'s IEP, which strongly suggested that denial of a FAPE was the gravamen of their Rehabilitation Act claim. Judge Selya argued that a court must find that a particular claim cannot be interpreted to allege the denial of a FAPE, either explicitly or implicitly, before allowing the claim to sidestep IDEA's exhaustion requirements. Because in this case the Doucettes argued both FAPE and non-FAPE harms, the dissent appeared to consolidate the "gravamen" of the complaint as a FAPE-related composite claim.

The majority more correctly identifies that the denial of access to a service dog as an accommodation to a disabled individual is not inherently tied to the a separate claim for denial of a FAPE. B.D. could have suffered the same harm at any federally funded public building; and any adult with similar needs could have suffered the same harm trying to bring their service dog into the school. It is important for student-plaintiffs to know which harms require the hassle of administrative exhaustion and which harms do not. The clarity of the majority opinion will go a long way toward informing student-plaintiffs of their rights. In instances where a child is kept from a necessary educational aid like a service dog, knowledge regarding the right to a more rapid correction of the situation is critical. The majority opinion provides that knowledge, which should prove useful for guidance in similar situations going forward.

Nicholas M O'Donnell is a partner with Sullivan & Worcester in Boston, focusing his practice primarily on complex civil litigation. Ryan M. Rosenblatt is an associate at the firm.