DOJ/DOE Joint Publication: Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools
18. What dispute resolution mechanisms are available if a parent believes that a school district has improperly denied or limited his or her child’s access to a particular auxiliary aid or service under Title II or has not made FAPE available under the IDEA?
Answer. Under the IDEA, a parent challenging the provision of FAPE may request mediation, may file a complaint with the State educational agency, or may request an impartial administrative hearing by filing a due process complaint and participating in the prescribed resolution process.48 The administrative hearing procedures vary by state and may include one or two levels of administrative review. An administrative hearing decision may be appealed to a State or Federal court empowered to hear such cases. In general, IDEA’s administrative hearing procedures must be utilized before seeking relief in State or Federal court. More information about IDEA’s dispute resolution procedures is available at http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutio nqafinalmemo‐7‐23‐13.pdf.
Regardless of whether or not the student also is eligible under the IDEA, a parent of a student with a disability can file a Title II complaint regarding the denial or limitation of a particular auxiliary aid or service with the United States Department of Education’s Office for Civil Rights or with the United States Department of Justice’s Civil Rights Division,49 or file a Title II grievance with the school district if the school district has such a procedure.50
A parent may also choose to file a civil action alleging a violation of Title II in Federal court. However, parents and guardians should be aware that the IDEA requires that, before filing a Federal case under other laws, such as Title II of the ADA, seeking a remedy that is also available under the IDEA, the parent or guardian generally must exhaust the administrative hearing procedures of the IDEA, which means obtaining a final decision under the IDEA’s impartial due process hearing procedures.51
49 Information on how to file a complaint with ED’s Office for Civil Rights is on ED’s website at http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm. Information on how to file a complaint with DOJ’s Civil Rights Division is on DOJ’s website at http://www.justice.gov/crt/complaint/.
50 A school district that employs 50 or more persons must adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by Title II. 28 C.F.R. § 35.107(b). A school district that employs 15 or more persons must adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by Section 504. 34 C.F.R. § 104.7(b).
51 20 U.S.C. § 1415(l). Several Federal courts have applied this provision to specific facts in determining whether administrative exhaustion under the IDEA is required prior to filing a Federal case seeking relief under other Federal laws, including Title II of the ADA. See, e.g., Honig v. Doe, 484 U.S. 305, 327 (1988); J.B. ex rel. Bailey v. Avilla R‐XIII Sch. Dist., 721 F.3d 588, 594 (8th Cir. 2013); Payne v. Peninsula Sch. Dist., 653 F.3d 863, 871‐878 (9th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 1540 (2012), overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014); McCormick v. Waukegan Sch. Dist., 374 F.3d 564 (10th Cir. 2004). Although other Federal circuits have issued decisions on IDEA exhaustion, for a discussion of the Federal government's view of exhaustion, generally, see United States' Brief as Amicus Curiae in Payne v. Peninsula Sch. District (9th Cir. 2011), available at http://www.justice.gov/crt/about/app/briefs/paynebr.pdf.
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