D. D., a minor, by and through his Guardian Ad Litem, Michaela Ingram, Plaintiff-Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant-Appellee.
No. 19-55810
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed November 19, 2021
D.C. No. 2:19-cv-00399-PA-PLA. Appeal from the United States District Court for the Central District of California, Percy Anderson, District Judge, Presiding. Argued and Submitted En Banc June 24, 2021, Pasadena, California.
Before: Sidney R. Thomas, Chief Judge, and Ronald M. Gould, Richard
Opinion by Judge Hurwitz;
Partial Concurrence and Partial Dissent by Judge Bumatay;
Dissent by Judge Paez;
Dissent by Judge Berzon
SUMMARY*
Individuals with Disabilities Education Act
The en banc court affirmed the district court‘s dismissal of student D.D.‘s action under the Americans with Disabilities Act against Los Angeles Unified School District for failure to exhaust administrative remedies under the Individuals with Disabilities Education Act.
The en banc court held that exhaustion of the IDEA process was required because the gravamen of the ADA complaint was the school district‘s denial of a free appropriate public education (“FAPE“) in failing to provide a one-on-one behavioral aide and related supportive services. The en banc court applied Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743 (2017), which directs a court to ask two hypothetical questions: (1) whether the plaintiff could have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school, and (2) whether an adult at the school have pressed essentially the same grievance. Under Fry, a court also must consider the history of the proceedings, in particular whether the plaintiff has previously invoked the IDEA‘s formal procedures to handle the dispute.
Declining to revisit Payne v. Peninsula Sch. Dist., 653 F.3d 863 (9th Cir. 2011) (en banc), the en banc court rejected D.D.‘s argument that he need not exhaust because he seeks compensatory damages for emotional distress, relief that is not available under the IDEA.
The en banc court declined to address whether D.D.‘s settlement of the administrative proceedings that he pursued prior to filing suit equated to exhaustion. The en banc court also declined to address the related question of whether D.D.‘s settlement rendered further exhaustion futile.
Judge Bumatay, joined by Judge Collins, and joined by Chief Judge Thomas and Judges Paez and Berzon as to Parts I.B and II, concurred in part and dissented in part. Judge Bumatay agreed with the majority that under Fry, D.D.‘s complaint concerned an injury to his right to a FAPE. He wrote that he nonetheless would vacate the district court‘s order because, in his view, by the IDEA‘s plain text, when a complaint seeks money damages not available under the IDEA, the plaintiff is freed from the IDEA‘s exhaustion requirement. Chief Judge Thomas and Judges Paez and Berzon joined in Parts I.B and II of Judge Bumatay‘s opinion, stating that a plaintiff who seeks damages is generally not required to exhaust the IDEA process.
Dissenting, Judge Paez, joined by Chief Judge Thomas and Judge Berzon, wrote that he would reverse the district court‘s dismissal order and remand because the gravamen of D.D.‘s operative complaint was a disability discrimination claim under the ADA.
Dissenting, Judge Berzon, joined by Chief Judge Thomas and Judge Paez, wrote that she joined Judge Paez‘s dissent in full and joined the dissenting portions of Judge Bumatay‘s opinion. She wrote separately to call attention to the question, not decided by the majority, whether settlement after IDEA-prescribed mediation amounts to exhaustion. Judge Berzon wrote that she would hold that the exhaustion requirement is satisfied when the parties have settled disputed IDEA issues through the administrative hearing and mediation process.
COUNSEL
Shawna L. Parks (argued), Law Office of Shawna L. Parks, Los Angeles, California; Patricia Van Dyke and Janeen Steel, Learning Rights Law Center, Los Angeles, California; for Plaintiff-Appellant.
Matthew R. Hicks (argued) and Michele M. Goldsmith, Bergman Dacey Goldsmith, Los Angeles, California, for Defendant-Appellee.
Andria Seo, Lauren Lystrup, and
OPINION
HURWITZ, Circuit Judge:
D.D., an elementary school student, has an emotional disability that interferes with his ability to learn. D.D. sought relief from the Los Angeles Unified School District under the Individuals with Disabilities Education Act (“IDEA“), alleging that he was being denied a free appropriate public education (“FAPE“). D.D. claimed that the District had denied him a FAPE by, inter alia, failing to provide a one-on-one behavioral aide and related supportive services. The parties settled their dispute after mediation. D.D. then filed a complaint in the district court, alleging that the District had violated the Americans with Disabilities Act (“ADA“) by failing to provide the same services sought in the IDEA proceedings. The district court dismissed the complaint without prejudice for failure to exhaust the IDEA process.
D.D. has appealed the district court‘s order. In its current posture, this is a case entirely about timing. It is common ground that D.D. can sue the District under the ADA for not providing reasonable accommodations. It is also common ground that the same omissions or actions can give rise to claims both under the IDEA and the ADA. But the Supreme Court has instructed us that if the gravamen of D.D.‘s complaint is the school‘s failure to provide a FAPE, he must first exhaust the IDEA process before seeking ADA relief.
The only disputed issue is whether the gravamen of this complaint is the failure to offer a FAPE. Because it is, we affirm.
I
We begin by reviewing the statutory framework.
A
“The IDEA offers federal funds to States in exchange for a commitment: to furnish a [FAPE] to all children with certain physical or intellectual disabilities.” Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 748 (2017). A FAPE “comprises ‘special education and related services‘—both ‘instruction’ tailored to meet a child‘s ‘unique needs’ and sufficient ‘supportive services’ to permit the child to benefit from that instruction.” Id. at 748-49 (citing
The “centerpiece of the [IDEA‘s] education delivery system” is an individualized education program (“IEP“). Honig v. Doe, 484 U.S. 305, 311 (1988). Crafted by an “IEP Team” of school officials, teachers, and parents, an IEP spells out a plan to meet a child‘s “educational needs.” Fry, 137 S. Ct. at 749 (quoting
B
Other statutes also protect the rights of children with disabilities. The ADA promises non-discriminatory access to “the services, programs, or activities” of any public facility,
When disability issues arise in the school context, the substantive requirements of the IDEA may overlap with those of these other statutes. After the Supreme Court read the IDEA as providing the “exclusive avenue” for a child with a disability to challenge his special education program, Smith v. Robinson, 468 U.S. 992, 1009 (1984), Congress amended the IDEA to provide that:
Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], [the Rehabilitation Act], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA‘s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].
C
In Fry, the Supreme Court addressed the issue of when a lawsuit “seeks relief that is also available under” the IDEA and is therefore subject to the exhaustion requirement. 137 S. Ct. at 748 (cleaned up). Because the IDEA only authorizes relief if a child has been denied a FAPE, the Court held that the exhaustion requirement of
In determining “when a plaintiff ‘seeks’ relief for the denial of a FAPE,” the Court has directed our focus to the “remedial basis” of the complaint. Id. at 755. Although the plaintiff is the “master of the claim,” “artful pleading” cannot excuse exhaustion. Id. What matters is “substance, not surface.” Id. So, we must set aside labels and ask whether the “gravamen of [the] complaint seeks redress for a school‘s failure to provide a FAPE, even if not phrased or framed in precisely that way.” Id. In doing so, we must be mindful of the “means and ends of the” various statutes at play. Id. “[T]he IDEA guarantees individually tailored educational services, while [the ADA] promise[s] non-discriminatory access to public institutions.” Id. at 756. Because “[t]he same conduct might violate [both] statutes,” a plaintiff may have a claim under the IDEA but can, without exhaustion, “seek relief for simple discrimination, irrespective of the IDEA‘s FAPE obligation.” Id.
Fry offered two “clues” to direct the gravamen analysis. Id. The first comes from two hypothetical questions: (1) “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?“; and (2) “could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?” Id. If both answers are “yes,” the complaint is likely not just about the denial of a FAPE, as the “same basic suit” could go forward without the FAPE obligation. Id. But if the answers are “no,” the complaint probably concerns a FAPE, as “the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.” Id. The Court provided two examples:
- Take a wheelchair-bound child who sues a school for the lack of access ramps. The missing “architectural feature” could have educational consequences and might be couched as an IDEA violation, for “if the child cannot get inside the school, he cannot receive instruction there.” But he could bring the same complaint against another public building, and an adult could bring “a mostly identical complaint against the school,” so the “essence is equality of access to public facilities, not adequacy of special education.”
- Take, by contrast, a child with a learning disability who sues for the lack of remedial tutoring in math. The action “might be cast as one for disability-based discrimination, grounded on the school‘s refusal to make a reasonable accommodation.” But even absent reference to a FAPE, “can anyone imagine the student making the same claim against a public theater or library? Or, similarly, imagine an adult visitor or employee suing the school to obtain a math tutorial?” “The difficulty of transplanting” this claim to other contexts suggests “its essence—even
though not its wording—is the provision of a FAPE.”
The second “clue” comes from the history of the proceedings, “in particular” whether “a plaintiff has previously invoked the IDEA‘s formal procedures to handle the dispute.” Id. at 757. “A plaintiff‘s initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a FAPE.” Id. “Whether that is so depends on the facts; a court may conclude, for example, that the move to a courtroom came from a late-acquired awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely.” Id. “But prior pursuit of . . . administrative remedies will often provide strong evidence that the substance of a plaintiff‘s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.” Id.
II
With the statutory background in mind, we turn to the facts and procedural history of this case.1
A
D.D. is an elementary school student with “a disability that interferes with his ability to learn.” D.D. started receiving special education services to address his “emotional disturbance” in kindergarten (the 2015-16 school year). “His disability-related behaviors ranged from being off-task and impulsive to being physically aggressive toward peers and adults.” “Starting early in the school year, school staff required one of D.D‘s parents to pick him up early from school due to his disability-related disruptive behavior.” D.D.‘s mother unsuccessfully requested a one-to-one aide “to accommodate D.D.‘s needs and enable him to participate with his peers.”
D.D. transferred to a different school for first grade (the 2016-17 school year), but his “behaviors escalated.” He hit “himself, classmates, and school staff,” “eloped from the classroom regularly,” and “took his frustration out on the property of others.” D.D.‘s mother again asked about a “one-to-one aide,” but D.D.‘s teacher “did not make a referral for an aide or a functional behavior assessment.” Instead, “[s]tarting in the beginning of the school year, staff again called [D.D.‘s mother] regularly to pick D.D. up from school early due to his disruptive, disability-related behaviors, excluding him from participation in all school activities.”
Staff soon gave D.D.‘s mother “an ultimatum: either pick him up from school or have a family member serve as his one-to-one aide to enable D.D. to participate in the classroom.” So, in October 2016, the mother‘s partner, Albert, quit his job to accompany D.D. “on a nearly daily basis.” On a day that Albert was unable to do so, D.D. had a “severe behavioral incident” that prompted the school to summon a psychiatric emergency team. The episode subsided before the team arrived, but D.D. was ultimately hospitalized for a week. After the incident, D.D.‘s mother “again explicitly [and unsuccessfully] requested a one-to-one aide for D.D.”
The District was “still was not offering [D.D.] behavior supports and services” during the second grade (the 2017-18 school year). Albert continued to accompany D.D. “on most days to monitor [his] behavior and enable him to access his education.” But “D.D.‘s disruptive, disability-related behavior continued to escalate.” D.D.‘s mother again requested “a one-to-one
D.D.‘s mother withdrew him from school in November 2017, and he “stayed out of school for a few weeks due to the stress of attending school at all.” D.D. returned to his original elementary school in mid-December and was treated “with a similar pattern of neglect and discrimination.” D.D.‘s mother “routinely requested communication and updates from his teacher,” who never replied. A classroom aide “provided general support to the classroom, but D.D. was not offered any one-to-one behavior services.” Rather, he was “left to his own devices.”
D.D. was “finally referred . . . to a nonpublic school,” Eko Multi-Purpose Center (“Eko“), in January 2018. While there, D.D. was “not offered one-to-one behavior aide services,” but was placed in a smaller program with “more adult assistance.” D.D.‘s performance initially improved, but he was “routinely bullied on the bus to and from school without behavior[al] support.” D.D.‘s mother “requested an aide for the bus, but none was provided.” Moreover, the “District repeatedly neglected D.D.‘s personal safety and needs on campus,” and he came home with bruises three times. D.D. was twice attacked by other students, and a staff member once “slammed [his] face against a wall.”
In May 2018, D.D.‘s mother stopped sending him to Eko for fear of his safety. D.D. transferred to a new non-public school, Vista Del Mar, in September 2018.
B
In March 2018, while at Eko, D.D. filed a “Request for Mediation & Due Process Hearing” with the California Office of Administrative Hearings (“OAH“). The request asserted that the District had failed to offer the services, evaluations, and programs D.D. needed to receive a FAPE. The central allegation was the District‘s failure to include in D.D.‘s IEP a one-to-one aide or behavioral services needed for him to “remain in school” and “access” his education. See Request for Hearing at 2 (alleging District‘s failure “to provide [D.D.] a one-to-one behavior aide or behavior intervention implementation services); see also id. at 3 (“District [did not] offer a one-to-one behavior-trained aide to work with [D.D.] to enable him [to] remain in class and work effectively.“), id. at 4 (“The IEP contained a behavior support goal . . . . Despite the described behaviors, [D.D.] was not offered behavior services and supports[.]“).
The request identified thirteen “problems,” including that the District:
- “den[ied] [D.D.] a FAPE” by not offering sufficient services and supports in various areas (e.g., not offering “a more appropriate placement,” “one-to-one behavioral aide,” or “behavioral development services” for “behavioral management“) (Problems 1-5);
- failed to conduct assessments in a manner that adequately informed the IEP team of D.D.‘s needs (e.g., that two assessments did not recommend offering D.D. services and supports to manage his behavior, like a one-to-one behavior aide) (Problems 6-9);
- “failed to offer [D.D.] a FAPE” in violation of
§ 504 , including by not offering him “reasonable accommodations” that he needed to “gain meaningful access to his education” (i.e., a one-to-one behavioral aide) (Problems 10-11); and - discriminated against D.D. in violation of other laws, including the ADA, by not offering him reasonable
“accommodations or supports to manage the extreme behaviors resultant from his disability” so he could “access the school‘s services” (i.e., a “trained one-to-one behavior aide and related supports“) (Problems 12-13).
D.D. sought modifications to his IEP “as an offer of FAPE” (including a “one-to-one behaviorally trained aide” and “[r]evis[ion] of [his] behavioral support plan“), funding for various assessments, compensatory services, and damages.
In April 2018, after mediation, D.D. settled his IDEA claims against the District. The settlement agreement waived all claims “related to, or arising from, [D.D.‘s] educational program,” except claims for damages. In exchange, D.D. received a modified IEP, with additional speech and language services; a psychoeducational assessment to be considered by the IEP team; and various compensatory services. The settlement agreement states that provision of these services “shall not be construed as[] an admission of what is a [FAPE] for [D.D.],” and it does not expressly provide for the one-to-one behavior aide or other related behavior supports that D.D. repeatedly sought from the District. See Settlement Agreement ¶ 5 (providing only for an additional psychoeducational assessment to “be considered” by the IEP team).2
C
In January 2019, D.D. filed this action. The operative first amended complaint contends that the District discriminated against D.D. “by excluding him from school, refusing to offer an aide, only allowing him to stay in school if his [p]arent served as an aide, and by enabling him to be subjected to an unsafe school environment.”3 The ADA claim is predicated on the District‘s “fail[ure] to provide meaningful and equal access to its educational program in violation of the [ADA], including, but not limited to, by failing to provide D.D. with required accommodations, aids and services.” D.D. alleges he “has suffered, and will continue to suffer loss of equal educational opportunity, as well as humiliation, hardship, anxiety, depression and loss of self-esteem.” He “seeks damages and attorneys’ fees and costs as a result” and “[s]uch other relief as the Court deems just and proper.”
The district court dismissed D.D.‘s operative complaint without prejudice for failure to exhaust the IDEA process. It found that by challenging the District‘s failure to provide a one-to-one aide or address his behavioral needs, the complaint was “in essence . . . contesting the adequacy of [his] special education program.” D.D. v. Los Angeles Unified Sch. Dist., No. CV 19-399 PA (PLAX), 2019 WL 4149372, at *3 (C.D. Cal. June 14, 2019) (quoting Fry, 137 S. Ct. at 755). The court rejected any argument that D.D. was not required to exhaust simply because he sought damages in the ADA complaint. And it found D.D.‘s settlement not tantamount to exhaustion.
III
On appeal, D.D. argues only that the operative complaint should not be subject to the exhaustion requirement, not that he has in fact exhausted the IDEA process or that further exhaustion would be futile. Review is de novo because D.D. raises only issues of law. See N. Cnty. Cmty. All., Inc. v. Salazar, 573 F.3d 738, 741 (9th Cir. 2009). Applying Fry, we hold that exhaustion is required.
A
We begin by rejecting D.D.‘s argument that the remedial basis of his ADA complaint is not the denial of a FAPE. The crux of D.D.‘s complaint is that the District failed to provide “required accommodations, aids and services” that he needed to “access” his education, and that “as a result” of its failure, he suffered loss of educational opportunity, exclusion from school, and harassment by others. The complaint identifies the accommodations denied as a one-to-one aide or other supportive services to manage D.D.‘s behavior. These are core components of a FAPE, see Garret F., 526 U.S. at 73; see also
Our reading of D.D.‘s complaint is confirmed by Fry‘s hypotheticals. As the panel majority candidly conceded, it is “difficult to picture a child claiming that a public library or municipal theater should have provided him with the accommodation D.D.‘s mother repeatedly requested of the District—a one-to-one behavioral aide—so the child could participate in the library‘s story time or attend a theatrical performance,” and “even more incongruous” to picture “[a] school visitor asking the District to provide a personal aide.” D.D., 984 F.3d at 788. “The difficulty of transplanting the complaint to those other contexts suggests that its essence—even though not its wording—is the provision of a FAPE.” Fry, 137 S. Ct. at 757.
D.D. argues we should not focus on the specific accommodations allegedly denied but rather on a more general theory of the case. But this is not what Fry requires. See id. (asking whether we could “imagine an adult visitor or employee suing the school to obtain a math tutorial“). Generalizing in the fashion D.D. suggests reduces the first clue‘s utility, as it is the fact “[t]hat the claim can stay the same in . . . alternative scenarios [that] suggests that its essence is equality of access to public facilities, not adequacy of special education.” Id. at 756. Here, “the FAPE requirement is all that explains why [D.D.] (not an adult in that setting or a child in some other) has a viable claim.” Id.; cf. Paul G. v. Monterey Peninsula Unified Sch. Dist., 933 F.3d 1096, 1100 (9th Cir. 2019) (“Since a dog would not be among the services a school district would ordinarily provide in a FAPE . . . the gravamen of the Fry complaint was not an IDEA claim.“).
Our reading of the gravamen of the complaint is also confirmed by application of the second Fry clue, the history of the proceedings. D.D.‘s “prior pursuit of the IDEA‘s administrative remedies” is “strong evidence that the substance of [his] claim concerns denial of a FAPE.” Fry, 137 S. Ct. at 757. Indeed, the allegations in his administrative and federal pleadings are remarkably similar. See D.D., 984 F.3d at 795 (Rawlinson, J., dissenting) (summarizing similarities). In the former, D.D. stressed his disagreements with the District over its failure to include a one-to-one aide or other behavioral development services in his IEP, and expressly alleged that this amounted to “denying [him] a FAPE“:
Here, District has failed to offer [D.D.] adequate placement and services to address his behavioral needs from March 2016 to present. It has been well known to District that [D.D.] has serious behavioral needs, and yet, District has not offered a more appropriate placement to manage his behaviors and/or a one-to-one behavioral aide and behavioral development services to create a behavior support plan by a behavior specialist. . . .
Despite Parent‘s continuous requests, District failed to provide a safe placement and behavioral services to enable him to access his education and support him by
creating a safe environment for himself and others. Until just a few weeks before filing this complaint, [D.D.] was left in a placement where he was altogether unable to attend class. Finally, he moved to a nonpublic school where Parent is hopeful his behavior needs will be better addressed. Therefore . . . District denied [D.D.] a FAPE.
In the latter, the operative complaint, D.D. re-frames the same actions and omissions by the District as an ADA violation, but the gravamen remains the same—that the District failed to offer D.D. supports needed to receive a FAPE. See Fry, 137 S. Ct. at 754.
Two recent decisions provide a useful comparison. In Paul G., we required exhaustion where a student challenged denial of an in-state residential educational facility, as the claim could only be premised on the student’s right to receive a FAPE, and he previously invoked the
We recognize that D.D.’s operative complaint contains some allegations arguably unrelated to the District’s obligation to offer a FAPE, such as physical abuse by students and harassment by staff. But D.D. is the “master of [his] claim,” Fry, 137 S. Ct. at 755, and rather than drafting a complaint that focused on those allegations or seeking relief only for damages arising from them, he instead offered a complaint that maps almost perfectly onto his
B
We next reject D.D.’s argument that he need not exhaust because he seeks relief that is not available under the
As a result of the [alleged ADA violation], D.D. suffered injury, including, but not limited to, denial of equal access to the benefits of a public education. As a direct and proximate result of the [alleged ADA violation], D.D. has suffered, and will continue to suffer loss of equal educational opportunity, as well as humiliation, hardship, anxiety, depression and loss of self-esteem due to Defendant’s failure to address and provide accommodations, modifications, services and access required due to D.D.’s disabilities[.] Plaintiff seeks damages and attorneys’ fees and costs as a result.
As drafted, the complaint seeks damages to remedy loss of educational opportunity.
Moreover, to the extent that D.D. argues that a plea for damages alone vitiates the exhaustion requirement,4 we disagree. Fry reserved the question of whether
We see no reason to revisit Payne. Our sister courts of appeal agree that a plea for damages does not categorically free a plaintiff from exhaustion. See McMillen v. New Caney Indep. Sch. Dist., 939 F.3d 640, 648 (5th Cir. 2019); J.M. v. Francis Howell Sch. Dist., 850 F.3d 944, 950 (8th Cir. 2017); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 63–64 (1st Cir. 2002); Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 487–88 (2d Cir. 2002); Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1066 (10th Cir. 2002); Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 916–17 (6th Cir. 2000); Charlie F. v Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 993 (7th Cir. 1996); N.B. v. Alachua Cnty. Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996). Moreover, nothing has changed in the decade since Payne was decided to warrant reconsideration on this point, except perhaps for the membership of today’s en banc panel. Although
We recognize the facial attraction to a rule that seeking damages alone overcomes the exhaustion requirement, as compensatory damages are not available in
allows for the exercise of [such] discretion and educational expertise by state and local agencies, affords full exploration of technical educational issues, furthers development of a complete factual record, and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.
Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 (9th Cir. 1992). In other words, exhaustion serves Congress’s intent that educational experts—not the courts—address deficiencies in the provision, construction, or implementation of a student’s IEP in the first instance. See Payne, 653 F.3d at 876.
By adding
C
We conclude by addressing two questions suggested by Amici’s briefing, beginning with whether D.D.’s settlement equates to exhaustion. A preliminary meeting is the first part of the
We similarly decline to reach the related question of whether D.D.’s settlement rendered further exhaustion futile. Despite brief references below to having “obtained all available relief through the administrative process,” D.D. conceded at oral argument that he did not preserve the issue for our review. His failure to do so is underscored by the inadequate record on futility. See, e.g., supra Part II.B & n.2. Indeed, if D.D. proceeds, the central question the district court must decide is whether D.D. required a one-to-one behavior aide or behavioral services to “access” his education, the very sort of issue an
IV
We do not today express a view on whether D.D.’s complaint states a plausible ADA claim, whether a differently drafted ADA complaint might not be subject to
AFFIRMED.
BUMATAY, Circuit Judge, with whom Judge COLLINS joins and with whom Chief Judge THOMAS, Judge PAEZ, and Judge BERZON join as to Parts I.B and II, concurring in part and dissenting in part.
Our court granted en banc review here to decide whether the Individuals with Disabilities Education Act (“
But that is not the end of the analysis. The Supreme Court has also said that we may need to look to the “specific remedy” sought in the complaint in determining whether
I.
A.
The
As the Supreme Court announced in Fry, for a plaintiff to be subject to the exhaustion requirement, the plaintiff “must seek relief for the denial of a FAPE, because that is the only ‘relief’ the
I agree with the majority that both Fry “clues” show that the gravamen of D.D.’s complaint is the denial of a FAPE. First, the complaint repeatedly identifies the lack of a one-to-one aide and other special education programs as the source of his injuries. No adult at a school could ask for such services. Second, D.D. pursued
B.
Yet, as the Court told us in Fry, concluding that the complaint involves the denial of a FAPE may not be the end of the exhaustion analysis. The Court did not address, and explicitly reserved “for another day,” whether exhaustion is required when
For its part, the majority answers the question “no”—D.D.’s request for only damages does not excuse him from the exhaustion requirement. Maj. Op. at 22–23. The majority believes that the Fry open question was resolved in Payne v. Peninsula School District, 653 F.3d 863 (9th Cir. 2011) (en banc). In that case, we held that a plaintiff cannot escape
1.
At all times, we must be guided by the plain meaning of the statute. As a refresher, the
With these definitions in mind, we need to ask whether money damages are a remedy available under the
Based on this understanding of remedies under the
While the majority is rightfully concerned about exhaustion being avoided by “artful pleading,” Maj. Op. at 26, my view of the law does not permit this. If a plaintiff seeks
Under this proper interpretation of the
FAPE grievances. For these reasons, I would hold that D.D. did not need to exhaust the
2.
I also note that the majority does not paint the whole picture of Payne. It is true that Payne was concerned that artful pleading could be used to evade the
So even if Payne answers the question left open by Fry, the majority is not properly applying it. The majority still needed to determine whether D.D.’s damages were directly tied to “counseling, tutoring, or private schooling.” Id. at 877. If it did so, the majority would have seen that nothing in D.D.’s complaint shows that to be the case. So even under Payne, I would hold that D.D. did not have to exhaust the
II.
Because damages are not a form of relief available under the
PAEZ, Circuit Judge, dissenting, with whom Chief Judge THOMAS and Judge BERZON join:
I respectfully dissent.
Oblivious to the Supreme Court’s warning that the danger that the close connection between claims that a student has been denied a “free appropriate public education” (“FAPE”) and claims of exclusion from educational opportunity could cause courts improperly to demand exhaustion of non-
I.
As the majority explains, students with disabilities have rights under three different federal statutes: the
The main difference between the
The district court dismissed D.D.’s complaint on the ground that he failed to exhaust his claim through the
In the administrative
II.
“We begin, as always, with the statutory language at issue.” Fry, 137 S. Ct. at 753. Here,
Nothing in [the
IDEA ] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also availableunder [the IDEA ], the [IDEA ’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [theIDEA ].
Thus, if a plaintiff seeks relief available under the
Although discriminatory conduct “might interfere with a student enjoying the fruits of a FAPE, the resulting [discrimination] claim is not, for that reason alone, a claim that must be brought under the
III.
In Fry, the Supreme Court directly addressed the relationship between the
that a complaint brought under Title II and
In focusing on the factual common ground between the FAPE-based claim that D.D. settled and does not allege in this lawsuit, and the non-IDEA claim he does allege, the majority concludes that D.D. must exhaust his ADA claim in a forum from which he cannot obtain further relief. In reaching this result, the majority relies on the Fry clues.1 The Fry clues are intended to aid in determining whether a complaint alleging ADA or
In D.D’s due process hearing request, he alleged that the District had failed to address his learning needs, constituting the denial of a FAPE under the IDEA. Specifically, D.D. alleged that the District had failed to (1) provide him with an appropriate placement and services, such as a one-to-one aide, to address his behavioral needs; and (2) offer sufficient services and supports in the areas of (i) occupational therapy, (ii) speech and language development, (iii) psychological counseling, and (iv) social skills. The request also stated that the denial of a FAPE was a violation of
After resolving his IDEA claims through settlement, D.D. followed the path prescribed by the Supreme Court in Fry and filed this action against the District for violations of the ADA and
IV.
A.
The first Fry clue offers two hypothetical questions for use in determining the gravamen of a school-based disability-discrimination complaint: 1) whether the plaintiff could bring the same claim outside the school setting, and 2) whether an adult could bring the same claim within the school setting. Fry, 137 S. Ct. at 756.
D.D.’s complaint focuses on his repeated exclusion from school. At the outset, he alleges that the District “excluded [him] from school and all of the programs and services made available to others without disabilities.” He then alleges that the “District discriminated against [him] on the basis of his disability by removing him from his classroom; sending him home early on multiple occasions, and requiring a parent to attend school with [him] to serve as his one-to-one aide instead of providing one.”
D.D. alleges that during his kindergarten and first-grade years, school staff “regularly” called D.D.’s parents to pick him up from school early, which “exclud[ed] him from participation in all school activities.” When D.D. was in first grade, “staff presented Parent an ultimatum: either pick him up from school or have a family member serve as his one-to-one aide to enable D.D. to participate in the classroom.” As a second-grader, “D.D. was left to his own devices” and was “commonly” allowed to “le[ave] class and walk[] around the campus for almost the entire school day unattended.” In sum, D.D. alleges that “[r]ather than offering meaningful and appropriate behavior accommodations and allowing D.D. to attend school for the same amount of time as typical peers, District discriminated against D.D. on the basis of his disability by excluding him from school, refusing to offer an aide, only allowing him to stay in school if his Parent served as an aide, and by enabling him to be subjected to an unsafe school environment.”
D.D. further alleges that due to the District’s failure to accommodate him, he was routinely bullied on the school bus, came home with bruises multiple times, was attacked by students, and had his head slammed into a wall by a staff member. To deal with the school bus issues, D.D.’s parents “requested an aide for the bus, but none was provided.” District staff allegedly threatened D.D., telling him “that if he did not behave, they would call the police and he would end up either in jail or in the hospital again.” These threats “traumatized” D.D., “making it impossible for him to attend school altogether.” Along with a “denial of equal access to the benefits of a public education,” D.D. alleges that he suffered “humiliation, hardship, anxiety, depression[,] and loss of self-esteem” as a result of the District’s “failure to address and provide accommodations,
Clearly, the gravamen of D.D.’s complaint is a challenge to his lack of access to the educational program or services the District provided. I fail to understand how, for example, the District’s alleged failure to provide a one-to-one aide on the school bus has anything to do with the adequacy of the instructional program the District provided, as the majority effectively insists. D.D. alleges that the District denied him the opportunity to attend school at all because of his disability-related behavior, unless accompanied by a parent. D.D.’s claim thus sounds squarely in the ADA: he alleges that he was denied meaningful access to his public educational program because the District failed to provide reasonable accommodations for his disability. These allegations are more than sufficient to satisfy the pleading standard for an ADA claim.3
The difference in the statutes’ goals is key to understanding whether administrative exhaustion should apply to D.D.’s Title II ADA claim: while the IDEA focuses on the provision of an individualized educational program to meet a child’s specific educational needs, see Honig v. Doe, 484 U.S. 305, 311 (1988), the ADA focuses on the barriers that exist to deny the student the opportunity to obtain such individualized attention, Fry, 137 S. Ct. at 756. Administrative exhaustion “is not intended to temporarily shield school officials from all liability for conduct that violates constitutional and statutory rights that exist independent of the IDEA and entitles a plaintiff to relief different from what is available under the IDEA.” Payne, 653 F.3d at 876 (emphasis in original).
D.D. requested reasonable accommodations from the District, including a one-to-one behavior aide, “so that he could have equal access to his public education, and the programs and services offered by LAUSD to the same extent as his peers without disabilities.” D.D.’s requests for the District to support his behavioral needs so that he could remain in school, and do so without being subjected to attacks, threats, and abuse, could not be brought in exactly the same way against a public library, or by an adult plaintiff, such as an employee or visitor to the school. But visitors to public libraries and adults employed by or visiting schools could well request similar, if not precisely the same, relief, to ensure access and nondiscriminatory participation—for example, nearby security officers, or permission to bring in a service animal.
Like such officers or animals, D.D.’s requested one-to-one behavior aide was intended to enable D.D. to remain in the classroom and participate alongside his peers. For example, in the operative complaint, D.D. alleges that after he was sent home because of his problematic behavior, his mother requested a one-to-one aide to “accommodate D.D.’s needs and enable him to participate with his peers.” He further alleges that school staff required his parents to “either pick [D.D.] up from school or have a family member serve as
Given these allegations, the first Fry clue is helpful in determining whether D.D.’s ADA claim is a disguised FAPE claim, as long as we recognize that the analogy between other locations or other plaintiffs and the child seeking to assure school access need not be exact. Indeed, it is unlikely that the Fry clues were intended to exclude students with behavioral—as opposed to physical—disabilities from recourse under Title II of the ADA because children’s needs at school may require accommodations somewhat different from—but analogous to—those appropriate for adults or in other public buildings. The majority’s rote application of the first Fry clue is therefore incorrect.
The majority makes much of the fact that D.D.’s operative complaint alleges that the District failed to provide one of the same services that he pursued administratively under the IDEA—a one-to-one classroom aide. But this overlap does not transform a claim that seeks relief under Title II of the ADA into a disguised FAPE claim. Where a child with disabilities has experienced both a denial of a FAPE in violation of the IDEA and exclusion from school in violation of the ADA, some overlap in the facts relevant to each is expected. As the Supreme Court observed, “[t]he same conduct might violate all three [disability discrimination] statutes.” Fry, 137 S. Ct. at 756. And as the “master of the claim,” a plaintiff has a right to bring claims under each. See id. at 755. For purposes of determining the applicability of administrative exhaustion, the question is whether D.D. plausibly alleged a claim of disability discrimination separate from the IDEA claim he previously settled.
D.D. plausibly alleged a claim of disability discrimination based on his exclusion from the classroom, and he reasonably sought a one-to-one aide as one remedy for that exclusion, apart from any educational services an aide could have provided. As explained in Fry, a child may seek a wheelchair ramp to remedy the denial of access to a school building or to remedy the denial of his right to a FAPE—which he cannot receive “if [he] cannot get inside the school.” Id. at 756. Similarly, a one-to-one aide could be necessary not only for D.D. to take advantage of other forms of instructional assistance as required by the IDEA but also for D.D. to access and remain in school, as required by the ADA. It is possible that the two different needs may even be met by two different aides, with different qualifications and attributes. The facts in D.D.’s operative complaint allege that without an aide, D.D. would not be able to remain in school at all, and thus would have no opportunity to receive a public education. “After all, if the child cannot get inside the school, he cannot receive instruction there.” Id.
Further, even if the one-on-one aide were precluded under a Fry analysis—which I do not believe it is—the only consequence
B.
The second Fry clue is the procedural history of the plaintiff’s pursuit of relief. See id. at 757. The majority characterizes D.D.’s complaint as “artful pleading” because he first pursued an IEP, but does not allege this in his complaint—leading the majority to conclude D.D.’s claim is necessarily a disguised FAPE claim. But in his operative complaint, D.D. tells the story of the District’s alleged violations of his rights. Under the majority’s reasoning, it is not clear what D.D. could have done to avoid the accusation of “artful pleading.” Fry urges courts to “consider substance, not surface”: the principal inquiry is whether a plaintiff’s complaint “seeks relief for the denial of an appropriate education.” Id. at 755.
In concluding that administrative exhaustion of D.D.’s ADA claim is required, the majority has transformed
Having resolved his IDEA claims through settlement, D.D. now pursues a claim whose gravamen relates to his discriminatory treatment on the basis of his disability, not the adequacy of the individualized education provided by the District. Fry directs courts to ensure that students who receive special education and have an IEP are not denied their right to pursue their non-IDEA claims directly in court. 137 S. Ct. at 754–55. D.D.’s operative complaint makes clear that his ADA claim does not challenge the adequacy of his instruction and related services, and therefore, does not “seek[] relief that is also available under [the IDEA].”
V.
Requiring IDEA exhaustion before seeking relief not available under the IDEA contravenes congressional intent, departs from Supreme Court precedent, and restricts students’ rights under other disability discrimination statutes like the ADA. See Payne, 653 F.3d at 874 (“The IDEA’s exhaustion requirement applies to claims only to the extent that the relief actually sought by the plaintiff could have been provided by the IDEA.”). The majority opinion will discourage students and their families from settling IDEA administrative due process complaints and will be a trap for unsuspecting parents who believe that settlement language that preserves non-IDEA claims does just that. By upholding the district court’s dismissal order, the majority has effectively sanctioned a system in which students can involuntarily and unknowingly waive their civil rights claims, even when preserved in writing by the parties.
For the above reasons, I would reverse the district court’s dismissal order and remand for further proceedings related to D.D.’s ADA claim. I respectfully dissent.4
BERZON, Circuit Judge, with whom Chief Judge Thomas and Judge Paez join, dissenting:
I join Judge Paez’s dissent in full and join the dissenting portions of Judge Bumatay’s opinion. I write separately to call attention to the “interesting question” mentioned, but not decided, by the majority: “whether settlement after IDEA-prescribed mediation amounts to exhaustion.” Majority op. 27. Although the issue may not be a live one in this appeal, see id. at 27, it is a serious question that, had it been properly raised, would, in my view, have provided a much more straightforward resolution of this case than the fact-bound issue debated in the majority opinion and Judge Paez’s dissent.
As then-Chief Judge Briscoe of the Tenth Circuit persuasively demonstrated, the exhaustion provision in the Individuals with Disabilities Education Act (“IDEA”),
The exhaustion provision should be read to encompass a settlement reached through the IDEA’s prescribed procedures “not only because the statutory framework anticipates, and in fact encourages, resolution of IDEA claims by way of mediation, but also because a mediated resolution leaves nothing to be decided at a due process hearing or in an administrative appeal.” A.F. ex rel Christine B., 801 F.3d at 1256 (Briscoe, C.J., dissenting). Here, for example, the settlement agreement expressly recognized that D.D.’s damages claims could not be resolved in an administrative hearing. The agreement did “not release any claims for damages required to be asserted in a court of law and which could not have been asserted in proceedings under the IDEA.” A fair reading of this language is that the parties intended to allow damages claims under the Americans with Disabilities Act to go forward because they could not have been brought under the IDEA.
Both the First and Tenth Circuits have excused exhaustion as futile in cases in which the plaintiffs engaged in the IDEA’s prescribed process and reached agreements with their school districts granting them all the relief they sought under the IDEA. Doucette v. Georgetown Pub. Schs., 936 F.3d 16, 33 (1st Cir. 2019); Muskrat v. Deer Creek Pub. Schs., 715 F.3d 775, 786 (10th Cir. 2013). “Having achieved success through their interactions with local school officials, there was no need for the [plaintiffs] to seek a[n administrative] hearing,” Doucette, 936 F.3d at 30, and “it would have been futile to then force them to request a formal due process hearing—which in any event cannot award damages—simply to preserve their damages claim,” Muskrat, 715 F.3d at 786. But resort to the less-than-clear futility doctrine is unnecessary under Chief Judge Briscoe’s persuasive interpretation of the statute.
I note that if our court were to adopt Judge Bumatay’s position that exhaustion is not required when plaintiffs seek money damages not available under the IDEA, Bumatay op. 32, the settlement problem would be diminished. Typically, once plaintiffs have settled their IDEA claims, a claim for damages is what is left.
But even if that position is not adopted, I would still read the statute not to require further exhaustion after plaintiffs have settled their IDEA claims. As Chief Judge Briscoe asked, “why would Congress, after creating a framework that quite clearly encourages resolution of IDEA claims by various means, force a claimant to avoid resolution of her claim by mediation or preliminary meeting . . . ? Doing so would effectively render superfluous the mediation and preliminary meeting provisions of the statute.” A.F. ex rel Christine B., 801 F.3d at 1256 (Briscoe, C.J., dissenting).
We have also recognized the preeminent importance of settlement efforts in this context, given that “the slow and tedious workings of the judicial system make the courthouse a less than ideal forum in which to resolve disputes over a child’s education.” Clyde K. v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1402 (9th Cir. 1994). “[E]veryone’s interests are better served when parents and school officials resolve their differences through cooperation and compromise rather than litigation.” Id. When the issue is properly raised, we should read the statute in a way that does not subvert one of its central goals—promoting the resolution of educational disputes through settlement.