KingSpry Third Circuit Court Takes Broad View on Exhaustion

In Its First Application of Fry, Third Circuit Takes Broad View on Exhaustion

Photo of Timothy E. Gilsbach

Posted on February 20th, 2018
by Timothy E. Gilsbach

The Third Circuit Court of Appeals, in the case of Wellman v. Butler Area School District, No. 15-3394 (Dec. 12, 2017), applied for one of the first times the Supreme Court’s decision in Fry v. Napoleon Community Schools to find that a student’s Section 504 claims required exhaustion through administrative due process prior to filing claims in federal court. However, in so doing the Third Circuit appears to take a broad view of when exhaustion is required.  

Background in the Case

Wellman involved a student who suffered a head injury playing football in his freshman year of high-school and requested various accommodations due to the injuries he suffered, which the district allegedly failed to provide. In addition, the student’s mother advised the football coach that the student was not cleared to participate in football and should not be exposed to possible physical contact on the field.

According to the parents, despite this warning, several weeks after the original injury the student was placed on the sideline at a football game to hold one of the markers and was struck by a player, causing another head injury.  After this second head injury, the student’s condition worsened and the family continued to request accommodations to address the same.

Over the course of the next two school years, the parents and district held a number of discussions regarding the student’s needs, although agreement could not be reached on a plan moving forward.  The parents eventually enrolled the student in a private school, from which he graduated.

Parents filed a special education due process complaint regarding the various issues related to the alleged failure to accommodate the student in school, which lead to a settlement that included a fairly broad release.

As a result of the settlement, no due process hearing was held. Parents and the student then filed a claim in federal court asserting claims under Section 504, ADA, and Section 1983 related to the failure to accommodate and the insistence that the student stand on the sideline at the football game.

The lower court dismissed the student’s claims finding that they required exhaustion prior to coming to federal court.

Bottom Line for Schools

The Third Circuit starts with a restatement of the Supreme Court’s analysis in Fry regarding when exhaustion is required and when it is not – including a review of whether the claims could be asserted against a public entity that was not a school or by an adult against a school and by focusing on the history of the proceeding.

Applying this analysis, the Third Circuit finds that the student’s “grievances all stem from the alleged failure to accommodate his condition and fulfill his educational needs.”

The Court further explains that all of the claims, including the claims related to what happened at the football game, are intertwined with the claim related to the denial of a FAPE, making exhaustion required.  However, the Court further finds that the student has waived all possible claims that could be asserted before a hearing officer by virtue of the settlement agreement and, thus, dismisses the case in full.

The Court in one of its first applications of Fry appears to take a broad view of the exhaustion requirement, by applying it to claims that relate to participation in an after school activity.

If you have any questions, please contact your legal counsel or one of the Education Law Practice attorneys at KingSpry.


School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.