Students with disabilities can file a lawsuit before the administrative measures are exhausted

A student with a disability does not have to first exhaust state administrative remedies before filing a lawsuit against a school district, a federal appeals court ruled Friday, overturning a lower court decision.

ZW, an elementary school student, was diagnosed with autism spectrum disorder, language disorder and anxiety disorder in 2017, according to the ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in ZW vs. Horry County School District and goes 1-10.

Between 2017 and 2021, his parents asked the Conway, South Carolina-based Horry County School District at least four times to allow their son to be accompanied at school by an applied behavior analysis therapist at no cost to the school district, the ruling said. The school district denied the first three requests and did not respond to the fourth.

The boy̵

7;s father filed suit in US District Court in Florence, South Carolina, alleging that the school district had violated the Americans with Disabilities Act and the Rehabilitation Act by refusing to accommodate ZW’s request that a therapist accompany him to school.

The district court ruled against the parents, finding that ZW needed to exhaust administrative remedies under the Individuals with Disabilities Education Act before filing suit. IDEA promises students with disabilities a “free appropriate public education.”

It was overturned by a three-judge panel, citing the US Supreme Court’s 2017 ruling in Fry v. Napolean Community Schools, which held that a student or family suing a school district over a disability issue need not always exhaust all IDEA procedures before going to court.

The only substantive right created by the IDEA is thatfree appropriate public education” … and the only relief available under IDEA’s administrative process is measures designed to enforce that right,” the appellate panel said.

“Because ZW’s complaint does not request anything to be ‘provided at public expense . . . and without cost’ to him and his parents . . . its ‘essence’ or ‘crux’ does not appear to concern a free appropriate public education under the IDEA, said the ruling, remanding the case for further proceedings.

Attorneys in the case did not respond to requests for comment.