American Association of Cosmetology Schools v. Richard W. Riley, Secretary of Education

The majority’s conclusion that AACS’s lawsuit for declaratory relief is barred by the anti-injunction provision of 20 U.S.C. § 1082(a)(2) is simply incorrect. The majority’s alternative holding, that this lawsuit cannot go forward even if § 1082(a)(2) does not apply because AACS failed to exhaust administrative appeals, was not raised below by the Secretary and was therefore waived. Moreover, that holding is contrary to this court’s established rule that exhaustion is not required when the agency’s procedures are alleged to be illegal or unconstitutional. Our rule is particularly applicable…