Petitioner E.F., a student with cerebral palsy, had a service dog recommended by her pediatrician to help her with daily life activities. When E.F. was in kindergarten, her parents requested that the service dog accompany E.F. to school. The School District denied this request on the basis that the human aide assigned to E.F. through her Individualized Education Program (IEP) was able to address E.F.’s needs, rendering the service dog unnecessary. E.F.’s parents began homeschooling E.F. and filed a complaint with the Department of Education’s Office for Civil Rights (OCR), claiming that the exclusion of E.F.’s service animal was a violation of her rights under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). After OCR found in favor of E.F., the school invited E.F. to return to school with the service dog. Parents opted to enroll E.F. in another school district and then filed suit in federal court against the local and regional school district and principal (School Districts), alleging they violated the ADA and Section 504 by denying E.F. equal access to the school and its programs, refusing to reasonably accommodate E.F.’s use of a service dog, and discriminating against E.F., seeking declaratory and monetary relief. The District Court granted the School Districts’ motion to dismiss the suit, holding that §1414(l) of the Individuals with Disabilities Education Act (IDEA) required E.F. to first exhaust the IDEA’s administrative procedures. The Sixth Circuit affirmed.

The U.S. Supreme Court, in an 8-0 ruling, held that exhaustion of the IDEA’s administrative procedures is unnecessary when the essence of the complaint is something other than the denial of IDEA’s core guarantee of a “free appropriate public education” (FAPE). Because the only relief provided through IDEA’s administrative procedures is relief for the denial of FAPE, this must be the substance of the plaintiff’s complaint for IDEA’s administrative procedures to apply. If a suit is brought under a different statute, such as the ADA or Section 504, and the relief sought is not for the denial of a FAPE, exhaustion of the IDEA’s procedures is not required.

The Court stated that courts must look at the substance of a claim to determine if a plaintiff is seeking relief for the denial of FAPE. The Court provided two questions to help determine whether the substance of the claim is denial of FAPE. First, “Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library?” Second, “Could an adult at the school—say an employee or visitor—have pressed essentially the same grievance?” If the answer to either question is yes, is it not likely that the complaint is about FAPE. If the answer to both questions is no, however, it is likely that the complaint does concern FAPE. The Court also suggested another clue that the case is about a denial of FAPE can be ascertained by looking at the history of the proceedings. If the plaintiff initially sought relief through IDEA’s administrative remedies, this may suggest the substance of the claim is a denial of FAPE.

The Court has remanded the case back to the Sixth Circuit to determine whether the Frys utilized the IDEA’s dispute resolution process prior to filing a federal suit. If so, the Sixth Circuit needs to determine whether the Frys’ actions indicate that the substance of their complaint is related to a denial of FAPE, thus requiring further exhaustion of IDEA’s administrative procedures.

This decision means that a plaintiff can bring a suit under antidiscrimination statutes such as the ADA or Section 504, without first exhausting IDEA’s administrative procedures if the gravamen of the complaint is not relief sought for the denial of FAPE.

Cassandra Black, IASB Law Clerk

Defendant The Kernel Press (The Kernel), the student-run newspaper of Plaintiff University of Kentucky (UK), requested from UK copies of all records detailing a professor’s resignation within the context of a sexual assault complaint filed by two students. UK refused to disclose records containing personally identifiable student information under the Family Educational Rights and Privacy Act (FERPA), reasoning that disclosure would be an invasion of the students’ personal privacy. The Kernel appealed to the Kentucky Attorney General, who ordered UK to disclose the records with student identifiers redacted. UK appealed to Kentucky circuit court.

The Court found that while FERPA generally permits disclosure of employment records directly related to an employee in their employment capacity, these records also directly related to the students, making them educational records protected by FERPA. As such, the Court found them exempt from disclosure under the Kentucky Open Records Act. The Court also held that the records could not be disclosed in redacted form because redaction would not offer adequate protection, as details in the records would make it easy for one to identify the students with reasonable certainty.

Although not binding in Illinois, this case reminds public bodies that investigative documents regarding an employee may also be educational records under FERPA if the records also directly relate to a student. Additionally, educational records that cannot reasonably be redacted to support a student’s privacy rights do not need to be released.

Cassandra Black, IASB Law Clerk

A school board met in closed session to discuss the possibility of entering into a separation agreement with the then-Superintendent. The Superintendent signed and dated the agreement during the closed meeting. During a subsequent closed meeting, six of seven board members signed but did not date the agreement. Next, the Board posted the agenda for a subsequent open meeting on its website, listing an item to approve the resolution and separation agreement between the Superintendent and Board. The agenda identified the Superintendent by name and contained a link to the full text of the separation agreement. At the open meeting, the Board read the agenda item and full text of the resolution, conducted a roll call vote, and approved the resolution and agreement. The Attorney General found the Board violated OMA, stating that by signing the agreement in closed session the Board took final action, and the Board did not adequately inform the public of the nature of the matter under consideration. The circuit court reversed this decision and the appellate court affirmed.

The Attorney General then appealed to the Illinois Supreme Court, which agreed with the lower courts and found in favor of the Board. The Court held that under Section 2(e) of OMA, a public recital must take place at the open meeting before the matter is voted upon, and the recital must announce the nature of the matter being considered. Adequate detail to identify the particular issue is required, but this does not require an explanation of its terms or significance. The Court also held that here, reading the agenda item and full text of the resolution before taking a roll call vote satisfied OMA. The Court further clarified that final action does not, as the Attorney General claimed, require a board to provide a detailed explanation about the significance or impact of the proposed final action.

The decision means that during a validly conducted closed session, board members may continue to express their individual positions without fear they are taking impermissible final action. Activities in closed session like taking a straw poll or signing a document are permissible provided the board later takes final action in a properly conducted open session.

Cassandra Black, IASB Law Clerk

A public body violated Section 2.02(c) of OMA by voting to amend and approve a settlement agreement without including the general subject matter of the final action on the meeting agenda. The public body’s attorney was present at the meeting and specifically advised the public body that it could not take final action because the matter was not on the agenda, but the public body moved ahead with final action. The PAC ordered the public body to remedy this violation by reconsidering its final action on the settlement agreement at a properly noticed meeting with a proper agenda.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Rules that require advance notice to the public body before recording a meeting may violate OMA. Here, a public school district prohibited an individual from recording its September 20, 2016 board meeting because the individual only provided notice of his request to record 10 minutes before the meeting began, and the school district’s practice was to require 24-hours’ advance notice. In addition, this particular meeting took place in a school learning resource center, where students were present, and the school district asserted that 10 minutes’ advance notice did not allow sufficient time to arrange for the individual to record the meeting from a location that would prevent student images from appearing in it. Citing to PAC Opinion No. 12-010 (June 5, 2012), the PAC affirmed that any rule requiring advance notice of recording a meeting has a steep burden to overcome in order to demonstrate it is reasonable. Here, the PAC found that the school district had not met its burden of demonstrating that advance notice of recording was reasonable. The PAC further found that if the locations of board meetings raised student privacy concerns then the school district is obligated to select a location for meetings where the right to record is not curtailed or to otherwise eliminate the concern (such as by prohibiting students from accessing the learning resource center during meetings).

This opinion is binding only to the parties involved and may be appealed pursuant to State law.