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The 2d U.S. Circuit Court of Appeals has overturned an award of attorney fees under the Individuals With Disabilities Education Act’s fee-shifting provision. Coleman v. Newburgh Enlarged City School District, No. 06-1466-cv. Student Elzie Deshawn Coleman had been awarded $28,431 in attorney fees after winning an injunction allowing him to stay in school and graduate despite having been suspended for an altercation with another student. The 2d Circuit reversed the award, finding that the act’s bar on federal jurisdiction absent exhaustion of administrative remedies should have prevented the suit from going forward. Coleman, a teen with a disability, attended Newburgh Free Academy High School and was just months from graduation when he got into a fight on school grounds. The fight triggered other fights among students. Newburgh police arrested Coleman. Following a “manifestation hearing,” in which it was determined that the incident was not attributable to Coleman’s disability, Coleman was entitled to a hearing and expedited review. But he never pursued the administrative remedies. Coleman was suspended from Newburgh Free Academy, the district’s public high school, for the remainder of the year and was given the opportunity to complete the year in an alternative setting. In 2004, Coleman filed suit in a New York state trial court seeking return to class and the right to participate in extracurricular activities. The case was removed to federal court, where the district and school officials claimed Coleman had failed to exhaust his administrative remedies by not appealing his suspension to an impartial hearing officer or to a state review officer of the New York Education Department. Judge Stephen Robinson of the U.S. District Court for the Southern District of New York refused to dismiss the suit, saying that exhaustion would be futile under the circumstances because Coleman would miss graduating with his class while the appeals were pending. Robinson granted the preliminary injunction that allowed Coleman to graduate and, later, approved the $28,431 in fees. The 2d Circuit reversed. Writing on behalf of the panel, Judge John Walker first addressed the Individuals With Disabilities Education Act (IDEA)’s exhaustion requirement under 20 U.S.C. 1415(i)(2)(A), which allows for a cause of action for parties “aggrieved” by a “final” decision. Under Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478 (2d Cir. 2002), Walker said, “the exhaustion requirement does not apply ‘in situations in which exhaustion would be futile.’ “ However, the lower court erred “by focusing on the detriment Coleman would have suffered on account of being removed” from the school and being placed in another setting. “The sole question was whether he had a right, under the IDEA, to be reinstated at [the school] while the allegedly erroneous manifestation determination was reviewed.” According to Walker, “He did not.” There are a number of procedural safeguards in the act, including expedited review, Walker said. “However, an aggrieved child does not have the right to return to the school from which he or she has been removed while the administrative and judicial review process is underway.” Walker went on, “[W]e are not persuaded that a disabled child has a right, under the IDEA, to graduate on a date certain or from a particular educational institution � specifically, the child’s original school” rather than an alternative setting. “The IDEA’s mandate is that all disabled children be given a ‘free appropriate public education,’ ” Walker said. “ In fulfilling this mandate, there is no general time and manner requirements placed on the states other than those provided in the IDEA and created by the states.”

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