Defending Access to Special Education – The Regulatory Review

Scholar argues for an irreparable harm exception to the exhaustion doctrine in special education disputes.

Before you have your day in court, you may need to wade through a lengthy administrative process first.

In the United States, the so-called exhaustion doctrine requires a variety of legal claims to proceed through complex administrative processes before the claimants may seek relief in the court system. As a result, hundreds of local, state, and federal agencies decide claims on matters such as Medicare, travel bans, and special education before those claims can ever get to the courts.

In a recent article, Rosemary Queenan, law professor at the University of Albany, proposes a framework to allow claimants to bypass the exhaustion requirement when following it would lead to irreparable harm.

To illustrate the problems with imposing strict exhaustion requirements and to highlight her proposed solution, Queenan explores exhaustion under the Individuals with Disabilities Education Act (IDEA), which protects the right to public education for children with disabilities.

As Queenan explains, IDEA contains an explicit exhaustion requirement. Unless an exception applies, people seeking relief under IDEA must first exhaust the administrative procedures outlined in the law and provided by school districts and state educational agencies before they can bring their claims to court. Because schools can sometimes withhold special education services pending the outcome of administrative review, Queenan argues that the exhaustion doctrine can cause serious educational harm.

The administrative process under IDEA begins with the filing of a complaint—typically by a parent or guardian about a denial of special education benefits—to a state or local educational agency. Schools must generally meet with complainants within 15 days of receiving notice of complaints. Failure to resolve complaints at those meeting or within 30 days of receiving notice entitles complainants to a due process hearing. Similar to courtroom trials, due process hearings afford claimants the right to present their case in a formal way before an impartial adjudicator.

Due process hearings to resolve IDEA complaints differ by state. Some states have adopted two levels of due process review, forcing unsuccessful complainants to proceed through two hearings before going to court.

Separate from preliminary meetings and due process hearings, parents and schools may also participate in mediation to resolve complaints—adding additional time to the administrative process.

In general, it is only after this web of procedures fails to resolve a complaint that parents may raise their IDEA claim in court. Meeting the exhaustion requirement can easily span an entire school year—and then it might take a court still more months to reach a decision. In some cases, children may be denied the services to which they are ultimately deemed entitled throughout this entire process.

According to Queenan, the exhaustion doctrine in IDEA and other laws usually advances three purposes.

First, the doctrine reflects the U.S. Congress’s intent that administrative agencies rather than the courts bear primary responsibility for the programs they administer. Requiring parents to appeal the termination of their child’s special education services to their local school district before bringing a claim in court preserves the district’s authority over special education.

Second, the exhaustion requirement allows administrative agencies to exercise their expertise and discretion. Applied to IDEA, the exhaustion requirement presumes that school districts rather than judges have expertise about special education.

Finally, the doctrine conserves judicial resources. If parents and school districts can come to agreements without court intervention, then the courts are free to hear other cases instead.

Despite these benefits, Queenan notes the potential for serious harm to children when schools withhold special education services pending administrative review.

In an effort to mitigate harms, parents can bypass administrative review and bring their claims directly to court if they can find a judge willing to invoke one of four exceptions to the exhaustion requirement. But according to Queenan, courts apply these exceptions sparingly, and the exceptions do not cover all the cases in which exhaustion could harm students.

Current exceptions include situations where use of due process procedures would be futile or where a parent challenges a general policy rather than a specific determination about services. Judges may also grant exceptions in emergency situations or where the administrative process is unlikely to provide adequate relief.

Queenan urges the courts to recognize irreparable harm as an fifth exception, arguing that such an exception would align with the futility and emergency exceptions while better addressing educational harms resulting from administrative delay.

According to Queenan’s research, courts apply the futility exception when agencies act in bad faith or fail to provide the special education services specified in an existing service plan. As Queenan explains, the emergency exception is narrower, generally applying only when a child faces an immediate danger, such as physical abuse.

Neither the futility nor emergency exceptions apply when a parent objects to the denial of new or additional services—a gap that can result in serious harm.

Queenan describes a case in which a school district denied special education services to a 15-year-old transfer student who had been receiving services for almost a decade. Two years passed before the administrative process produced a final denial and the parents could proceed to court. By then, the court’s eventual reward of compensatory education was too late, Queenan explains. It could not remedy the academic regression the child endured due to the wrongful denial of services.

Queenan argues that an exception based on irreparable harm would help fill this gap. She defines “irreparable harm” as situations in which “delay caused by exhaustion results in a denial of services that causes the child to regress academically in a way that cannot be remedied at a later point in the school year.”

According to Queenan, courts should examine three factors when considering whether to apply the irreparable harm exception.

First, courts should determine whether slow administrative review could result in regression. As the likelihood of regression increases, so too does the risk of irreparable harm.

Second, courts should consider whether a child will receive interim services pending administrative review. If a child is entitled to interim services, then administrative review can likely proceed without irreparable harm.

Finally, according to Queenan, courts should also consider whether potential harms stemming from administrative delay can be remedied. Where the services sought are time sensitive—such as summer programming—administrative delay is more likely to cause irremediable regression.

Queenan’s proposal is not novel. Courts employ the irreparable harm exception in a variety of other legal contexts, including in criminal prosecutions and social security matters. Other courts have hinted that the exception could apply in the special education context. Queenan implies that use of an irreparable harm exception would help realize the IDEA’s promise that “all children with disabilities have available to them a free, appropriate public education” that is “designed to meet their unique needs.”