Removing One Hurdle to Civil Rights Claims of Children with Special Needs
By Daniel T.S. Heffernan, Esquire – Kotin, Crabtree & Strong
A sad reality is that our children with special needs are sometimes the victims of physical, mental, or emotional abuse at school. The perpetrators of this abuse are the occasional bad actors amongst the many caring, professional teachers who dedicate their days to educating our children. There are also instances in which our children’s fellow students are the perpetrators, harming peers through bullying, hazing, or other types of abuse. There are civil claims that may be made to recover monetary damages for the child’s injuries. Among these claims are state-based negligence or “tort” claims; (2) state-based claims for intentional actions, such as intentional infliction of emotional distress or violation of the Massachusetts Civil Rights Act; and (3) federal claims, such as those under 42 USC § 1983, the Americans with Disabilities Act, or Title IX.
There are numerous protections accorded school districts and their personnel in these claims and numerous hurdles that must be overcome to successfully pursue a claim. These were discussed in detail in Sherry Rajaniemi-Gregg and my 2013 article Of Civil Rights and Children Newsline, Volume 33, No. 3.
One additional hurdle for civil rights claims for children on IEPs or 504 Plans is an administrative proceeding that must be pursued and completed before proceeding to court. Some courts have held that the Individuals with Disabilities Education Act (“IDEA”) prohibits filing suit in state or federal court against a school district for injuries a child on an IEP or 504 plan receives as a result of the actions of its personnel, until administrative remedies have been “exhausted.” Courts have stated that the rationale for this prerequisite is the administrative body’s expertise in special education that courts lack.
This simply means that, prior to filing any lawsuit in court, one must first file a request for a due process hearing in order to determine if the Bureau of Special Education Appeals (BSEA) has any authority over deciding the claims, and if so, what findings they might make and relief they may order. For example, when our firm has represented students abused, assaulted, or illegally restrained by special education teachers, we have litigated the matter first in the BSEA, even when we are asking only for money damages and not for relief related to the student’s special education program. Otherwise, there is a risk that a court will dismiss the civil rights claim and leave the family with no avenue for relief. For example, the court in Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002), upheld the dismissal of such a civil rights suit because it had not been first litigated in the BSEA. See also Bowden v. Dever, 2002 WL 472293 (D. Mass. 2002) (“Any aspect of the school’s treatment [of students] that interferes with the provision of free, appropriate public education is within the scope of the IDEA’s administrative procedures.”). Once parents have “exhausted” the administrative process, they may proceed to file a complaint in the state or federal court.
Proceeding through the BSEA before filing in court is problematic for civil rights claimants for several reasons. First, since the BSEA is not authorized to award money damages, litigating at the BSEA is a futile exercise. Second, it is costly in terms of time and resources of everyone involved – families, school districts and the BSEA. Third, the BSEA does not have the expertise to decide civil rights and tort claims. Fourth, since the only defendant in a BSEA proceeding is a school district, and not the individual school employees who may have perpetrated the abuse, the BSEA decision only applies to the school district. Lastly, and most significantly, it is simply unfair and discriminatory to require children with special needs to jump through a hoop that typical children need not in bringing civil rights claims.
The BSEA has begun to dismiss civil rights claims seeking only monetary damages. See, e.g., In Re: Springfield Public Schools, 20 MSER 37 (February 2014); Springfield Public Schools and Xylia, 18 MSER 373 (November 2012). However, no federal court in this jurisdiction has held that exhaustion is no longer required.
Recently, the Sixth Circuit Court of Appeals, which has jurisdiction over federal cases in Kentucky, Michigan, Ohio and Tennessee, held in F.H. v. Memphis City Schools, 2014 Fed. App. 0223P (6th Cir. 2014), that exhaustion was not a prerequisite for these types of civil rights claims. The student in that case had significant special needs and was allegedly physically, sexually and verbally abused by his school aides. When the lower courts dismissed his lawsuit for failing to exhaust, the Court of Appeals reversed, and held that exhaustion of the administrative remedies was unnecessary. The court held that the injuries were “non-educational in nature and cannot be remedied through the administrative process.” Id. at *7.
Hopefully, courts in our jurisdiction will follow this reasoning and remove this additional hurdle for children for special needs seeking compensation for civil rights violations.
Daniel T.S. Heffernan is a partner with Kotin, Crabtree & Strong where he concentrates on special education and civil rights law. He has represented numerous families with children with special needs in abuse, civil rights and negligence actions. Contact him at firstname.lastname@example.org.