Alaska Employment Law

The 9th Circuit panel that heard arguments in Anchorage on August 4-7 has issued its first opinion.  It affirmed Judge Ralph Beistline’s dismissal of a a claim under the Individuals with Disabilities Education Act for failure to exhaust administrative remedies.

Brooke’s failure to pursue a due process hearing cannot be excused. Although administrative exhaustion may be unnecessary when the basis of the IDEA claim is that the “agency has adopted a policy or pursued a practice of general applicability that is contrary to the law,” structuring a complaint as a challenge to an alleged policy is not enough. See Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303-04 (9th Cir. 1992).  DEED expressly concluded that AGSD “provided qualified personnel, training, and supervision of those serving” Brooke and that there was “insufficient evidence to support [her] allegation of noncompliance” with state and federal law. Thus, unlike in Christopher S. v. Stanislaus County Office of Education, 384 F.3d 1205, 1211 & n.3, 1213 (9th Cir. 2004), it is not an “undisputed fact” that DEED has in effect a “facially unlawful policy” of refusing to enforce district compliance with state educational requirements.

Brooke has not met her burden of establishing that resort to a due process hearing would be futile or inadequate. See Kutasi v. Las Virgenes Unified Sch. Dist., 494 F.3d 1162, 1168 (9th Cir. 2007). Should a due process hearing officer find that AGSD had violated the state educational regulations relating to monthly on-site supervision of related services, the hearing officer could order appropriate educational relief. See id. at 1169. Accordingly, there remain outstanding educational issues that could be developed – and potentially resolved – in the context of a due process hearing. See id.

Brooke M. v. State of Alaska, Department of Education and Early Development, 2008 _______ (9th Cir. Aug. 11, 2008)(unpub.)

Jacob Kammermeyer and Megan Allison of the Disability Law Center of Alaska represented the student/parents.  Stephen Slotnick of the Juneau AG’s office represented the State.