Jane Doe v. Knox Cnty. Bd. of Educ.Jane Doe v. Knox Cnty. Bd. of Educ.
COUNSEL
ARGUED: Justin S. Gilbert, GILBERT LAW, PLC, Chattanooga, Tennessee, for Appellant. Amanda Lynn Morse, KNOX COUNTY LAW DIRECTOR‘S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Justin S. Gilbert, GILBERT LAW, PLC, Chattanooga, Tennessee, Jessica F. Salonus, THE SALONUS FIRM, PLC, Jackson, Tennessee, for Appellant. Amanda Lynn Morse, Jessica Jernigan-Johnson, KNOX COUNTY LAW DIRECTOR‘S OFFICE, Knoxville, Tennessee, for Appellee.
MURPHY, Circuit Judge. Jane Doe, a high-school student, suffers from a condition that makes her hypersensitive to the everyday sounds of eating food and chewing gum. Doe‘s parents asked her school to ban students from eating or chewing in her classes. It refused. So they sought this ban by suing the Knox County Board of Education under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. While considering their preliminary-injunction motion, the district court decided to dismiss the suit. It reasoned that Doe‘s parents could obtain the requested relief in administrative proceedings under the Individuals with Disabilities Education Act (IDEA). Until they exhaust this administrative process, the IDEA bars Doe‘s parents from using the ADA or Rehabilitation Act to seek “relief that is also available” under that law.
We agree with their first argument but not their second. The IDEA provides relief only to students who need “specially designed instruction.” Because no ordinary English speaker would describe a ban on eating and chewing as “instruction,” her parents did not need to go through the IDEA‘s review process to attempt to seek this ban under the ADA and Rehabilitation Act. But just because Doe‘s parents need not exhaust their claims does not mean that Doe is entitled to a preliminary injunction under those laws. Knox County has offered significant justification for its policy allowing students to eat in class at the magnet school that Doe chose to attend—a school designed to operate like a college. Ultimately, though, we leave this issue for the district court to consider in the first instance. We thus reverse the district court‘s dismissal of the complaint, reject Doe‘s request that we grant a preliminary injunction, and remand for further proceedings.
I
This case reaches us at the motion-to-dismiss stage. We thus must accept the complaint‘s well-pleaded factual allegations as true. See Ass‘n of Am. Physicians & Surgeons v. FDA, 13 F.4th 531, 543-44 (6th Cir. 2021); Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017).
Jane Doe, who lives with her parents near Knoxville, Tennessee, has a condition known as “misophonia.” Compl., R.27, PageID 251. The complaint describes misophonia as “a disorder of decreased tolerance to specific sounds or their associated stimuli.” Id. According to Doe, the normal sounds of eating food or chewing gum cause her to suffer “great fear and anxiety.” Id., PageID 252. These common noises trigger a “fight or flight” sensation, forcing Doe to escape from areas in which she hears them. Id. They also exacerbate her recurring migraines. Id.
Before high school, Doe‘s misophonia did not affect her academic performance. Id., PageID 255. Her private middle school barred students from eating food and chewing gum in classrooms. Id. She thus could attend class without incident and excelled at her academics. Id., PageID 253-54. Doe was a “straight A student” and National Junior Honors Society member. Id., 253, 255; Doe Decl., R.27-2, PageID 265.
According to Doe‘s complaint, most of Knox County‘s public high schools likewise bar students from eating food and chewing gum outside the cafeteria. Compl., R.27, PageID 255. Yet Doe decided to attend L&N STEM Academy. Id., PageID 250. This high school‘s policy allegedly allows each teacher to decide whether students may eat food and chew gum on a class-by-class basis. Id., PageID 255-56. Some teachers, like Doe‘s ninth-grade math teacher, prohibit food and gum, so she has flourished in this class. Id., PageID 256. The high school also prohibits eating food or chewing gum in areas with “expensive equipment,” such as digital-art classrooms. Doe Decl., R.27-2, PageID 266. But other teachers, like Doe‘s ninth-grade history teacher, allegedly allow “rampant” eating and chewing. Compl., R.27, PageID 256. The high school also allows students to eat throughout an 80-minute elective (“Genius Hour“) that Doe would like to take. Id., PageID 257. L&N‘s permissive policies have forced Doe to avoid this elective and to leave her regular classes about 50% of the time, rendering her “physically and emotionally exhausted” at day‘s end. Id., PageID 256.
Doe‘s parents repeatedly asked Doe‘s teachers to ban eating and chewing during her classes. Id. But some teachers allegedly have refused on the ground that L&N‘s official policy permits this conduct. Id., PageID 257. Doe‘s parents thus turned to the school‘s administrators, asking them for this accommodation about halfway through her ninth-grade year in December 2021. Id. The administrators denied the request. Id., PageID 258-59. But they noted that Doe‘s parents could appeal this decision administratively. Id., PageID 259 n.8.
The next month, her parents instead brought this suit on Doe‘s behalf against Knox County. They alleged that the county‘s refusal to grant Doe the requested accommodation—a classroom ban on eаting and chewing for all students except those with medical needs—violated the ADA and Rehabilitation Act. Id., PageID 255, 259-60. They requested a permanent injunction that would require L&N to implement the accommodation for Doe. Id., PageID 260-61.
Along with their complaint, Doe‘s parents filed a motion for a preliminary injunction. During the injunction briefing, Knox County explained its rationale for refusing to ban eating and chewing in Doe‘s classrooms. L&N, a public “magnet” school, offers a curriculum tailored to the study of science, technology, engineering, and math for over 500 students from nine
Knox County also described the accommodations that L&N had provided to Doe. Since her arrival at the school as a ninth grader, Doe has had a “504 plan” (a plan under
According to L&N‘s principal, Doe‘s teachers have all requested that her peers limit eating in class. Allen Decl., R.44-1, PageID 446. But Doe responds that her case has now attracted unwanted local attention. The Knox County mayor, a retired professional wrestler who competed under the moniker “Kane,” has described the suit as “gum gate” on Twitter. Br., R.15, PageID 168. (The mayor has no affiliation with the Knox County Board of Education.) According to her father, this attention has caused some cruel students to target Doe by making noises that trigger her condition. K.M. Decl., R.31-1, PageID 359.
When considering Doe‘s preliminary-injunction request, the district court flagged a “potential jurisdictional issue” for supplementаl briefing: Did Doe‘s parents need to seek relief for Doe‘s injuries under the IDEA‘s administrative process before they pursued their claims under the ADA and Rehabilitation Act? Doe v. Knox Cnty. Bd. of Educ., 2022 WL 1126389, at *2 (E.D. Tenn. Apr. 15, 2022). During that briefing, Knox County moved to dismiss the complaint on this exhaustion ground. The district court granted its motion. Id. at *1. It held that Doe‘s parents sought relief for an educational harm that the IDEA could remedy. Id. at *4.
Doe‘s parents filed a notice of appeal and sought an emergency injunction pending appeal. The district court denied her request for an immediate injunction, and we subsequently denied that request too.
II
Doe‘s parents raise two arguments on appeal. They argue that they did not seek IDEA-available relief and so did not need to exhaust its administrative process before litigating their ADA and Rehabilitation
A. Exhaustion under the IDEA
The IDEA‘s exhaustion requirement grew out of the reality that three laws potentially allow children with disabilities to seek relief for difficulties that they encounter at school: the ADA, the Rehabilitation Act, and the IDEA. See Fry ex rel. E.F. v. Napoleon Cmty. Schs., 137 S. Ct. 743, 748-50 (2017). The first two laws protect all individuals with disabilities. Title II of the ADA seeks to ensure that people with disabilities may use public facilities like libraries, courthouses, or schools. It provides: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benеfits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
The IDEA, by contrast, protects only children with disabilities. It requires a state that wants IDEA-related funding to make “[a] free appropriate public education” “available to all children with disabilities residing in the State between the ages of 3 and 21[.]”
Parents have sometimes sought to avoid the IDEA‘s administrative scheme by immediately suing for an inadequate education under the ADA or Rehabilitation Act. The Supreme Court initially responded to this attеmpted workaround by holding that parents could seek relief only under the IDEA when challenging the adequacy of a child‘s education. Fry, 137 S. Ct. at 750 (discussing Smith v. Robinson, 468 U.S. 992 (1984)). Finding the Court‘s response overbroad, Congress amended the IDEA by adding its exhaustion requirement. See id. The IDEA now allows parents to pursue overlapping claims under the ADA or Rehabilitation Act, but they must complete the IDEA‘s administrative process if they are “seeking relief that is also available under” that law:
Nothing in this chapter 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 undеr such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
1
a. Our answer begins with the Supreme Court‘s decision in Fry. There, a student with cerebral palsy (E.F.) used her service dog (Wonder) to help with her balance while completing daily tasks like walking or taking off her coat. 137 S. Ct. at 751. E.F.‘s parents asked her school‘s administrators to allow E.F. to bring Wonder to school. Id. at 750-51. E.F.‘s parents sued after the administrators denied the request, alleging that their refusal to allow Wonder on school grounds violated the ADA and Rehabilitation Act. Id. at 751-52. Yet her parents failed to seek this accommodation through the IDEA. Id. Our court held that its exhaustion requirement barred their claims because the denial of the accommodation had caused educational harms to E.F. Id. at 758.
The Supreme Court disagreed with our rule requiring exhaustion whenever a student‘s injuries had an educational connection. Id. In the process, the Court issued two main holdings. Id. at 752-57. Fry first identified the “relief” that the IDEA makes “available” to students (in other words, the “benefit” that they may receive from a “favorable judgment“). Id. at 753 (citation omitted). The Court held that the IDEA allows parents to seek relief only for one injury: the denial of a “free appropriate public education.” Id. at 753-55. The Court added that parents need not exhaust if they seek some other benefit that an IDEA hearing officer could not provide. Id. at 754.
Fry next clarified how courts should decide whether a lawsuit requests a “free appropriate public education,” the IDEA‘s sole remedy. Id. at 755-57. Because the exhaustion provision focuses on the relief that parents seek, the Court adopted a complaint-centered approach. Id. at 755. It held that parents seek a free appropriate public education if the “crux” of their complaint requests that relief, notwithstanding “attempts at artful pleading” on their part. Id. at 755. Yet parents, as the “masters” of their complaint, must exhaust the IDEA‘s process оnly if they plead factual allegations that raise this remedy. See id. The parents need not exhaust if they seek other relief that the IDEA does not permit—even if they could have sought relief that it does. See id.
Fry provided three questions to guide this inquiry into whether a complaint seeks a “free appropriate public education” as the remedy. The Court started with a pair of hypotheticals: Could a student‘s parents have sought the relief if the challenged conduct had arisen outside school in, say, a “public theater or library“? Id. at 756. And could a teacher or guest at the school (rather than a student) have requested the same relief? Id. If the court answers “no” to these questions—for example, if a student with a learning disability seeks a tutor—the parents likely seek a free appropriate public education. Id. at 756-57. But if the court answers “yes“—for example, if a student in a wheelchair requests an access ramp—the student likely does not. Id. at 756. The Court ended with a third, real-world question: Were the parents using the IDEA‘s administrative process before they sued? Id. at 757. If so, their conduct would suggest that they themselves believed that they were seeking an education-related remedy available under the IDEA. Id.
How did Fry‘s test play out for E.F.‘s request to take Wonder to school? The Court opined that the Frys likely did not seek IDEA-available relief because they
b. Although Fry directs us to ask whether a complaint seeks a “free appropriate public education” as the relief, it did not offer much input into what this term of art means. Id. at 754-55. The IDEA‘s text and circuit precedent both show what it requires: Parents seek “relief” that is “available” under the IDEA only if a child needs an instructional change, not just a non-instructional accommodation to some school rule or policy.
Begin with the text. The IDEA requires states to give only a certain benefit (a “free appropriate public education“) only to certain students (“children with disabilities“).
The definition of “special education” next shows that a request for a “free appropriate public education” is a request for uniquely tailored teaching. “Special education” means “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability,” including “instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and” “instruction in physical education.”
To be sure, the IDEA also allows parents to seek “related services” as part of their child‘s “free appropriate public education.”
The IDEA, by contrast, does not allow parents to seek these services independent of specially designed instruction. Services cannot be “related” to special education (or “required” for a child to “benefit” from it) if the child does not need special education.
Circuit cases on this exhaustion provision comport with this general rule that the IDEA requires instructional changes. Most obviously, courts require parents to exhaust their claims when they seek the “special education” at the IDEA‘s core. See Durbrow v. Cobb Cnty. Sch. Dist., 887 F.3d 1182, 1190-91 (11th Cir. 2018) (citation omitted); see also S.D. v. Haddon Heights Bd. of Educ., 722 F. App‘x 119, 126 (3d Cir. 2018). Courts also require parents to exhaust their claims when they seek a change to the “delivery” or “methodology” of their child‘s “instruction[.]”
Conversely, courts generally hold that parents need not exhaust claims challenging noninstructional harms. When, for example, parents challenged a school‘s refusal to allow their child to bring his sеrvice dog to school, a court held that the parents did not need to exhaust because the claim did not request uniquely tailored teaching. See Doucette v. Georgetown Pub. Schs., 936 F.3d 16, 24-27 (1st Cir. 2019). Similarly, when parents challenged a state law prohibiting schools from imposing mask mandates, a court held that they need not exhaust because a request for masks in schools was not a request for a teaching change. See Arc of Iowa v. Reynolds, 24 F.4th 1162, 1175-76 (8th Cir. 2022), vacated as moot, 33 F.4th 1042 (8th Cir. 2022) (per curiam); but cf. E.T. v. Paxton, 19 F.4th 760, 767 (5th Cir. 2021). And when parents challenged abuse that their child suffered in the classroom, courts have held that the parents need not exhaust because
2
Turning to this case, we begin with our standard of review. The district court expressed understandable uncertainty over whether the exhaustion provision imposed a jurisdictional limit (that the court had a duty to raise on its own) or a claims-processing rule (that a defendant could forfeit). Doe, 2022 WL 1126389, at *2 n.2. Our court has left this question open, and others have split over it. See L.G., 775 F. App‘x at 231 n.3; Muskrat v. Deer Creek Pub. Schs., 715 F.3d 775, 784 (10th Cir. 2013). We have healthy skepticism for those courts that view the exhaustion rule as jurisdictional. Cf. Muskrat, 715 F.3d at 783-85. Nothing in the text casts the rule in jurisdictional terms, see
Be that as it may, we can save this issue for another day. Since Knox County raised this argument, the distinction does not matter. Cf. Gibson ex rel. Gibson v. Forest Hills Loc. Sch. Dist. Bd. of Educ., 655 F. App‘x 423, 431 (6th Cir. 2016). If exhaustion amounts to an affirmative defense (triggering the motion-to-dismiss framework in
Reviewing this exhaustion issue under those rules, we hold that Doe‘s parents did not need to proceed through the IDEA‘s administrative process because their complaint did not request (or suggest that Doe needed) any instructional changes. Recall that, аccording to the complaint, Doe‘s misophonia has forced her to leave her classes over 50% of the time because she cannot tolerate eating or chewing sounds. Compl., R.27, PageID 252, 256. To remedy this problem, Doe‘s parents ask for a single remedy: “a ban on eating and chewing in all of her academic classrooms (with a reasonable exception for other students with medical needs).” Id., PageID 255.
The “crux” of this request is not a “free appropriate public education” as the IDEA defines that phrase. Fry, 137 S. Ct. at 755. A ban on eating and chewing is neither “special education” nor a “related service” (the two items that make up a free appropriate public education).
If Doe otherwise required special education, we would find it debatable whether an accompanying ban on eating or chewing could qualify as one of the “related services” that the IDEA makes part of a “free appropriate public education.”
Apart from the IDEA‘s text, the relevant precedent points the same way. The requested accommodation in this case resembles the kinds of accommodations that courts have found fall outside the IDEA—like a request for a service dog to accompany a child in the classroom. See Fry, 137 S. Ct. at 758; Doucette, 936 F.3d at 24-26. The requested accommodation, by contrast, looks nothing like the kind of accommodations that courts have found fall within the IDEA—like a request for a one-on-one aide, D.D., 18 F.4th at 1054, or for a teacher to integrate a child‘s iPad into the teacher‘s lesson plans, E.D., 911 F.3d at 939-41.
Fry‘s two hypothetical questions reinforce this conclusion. For one thing, Doe could have tried to seek this type of eating and chewing ban in many other places. If Doe sought to spend quiet time reading in her local library, her parents might have attempted to seek an eating- and chewing-free room. Fry, 137 S. Ct. at 756. Or if Doe sought to watch a classic Shakespeare play at the local theater, her parents might have attempted to seek a ban on eating or chewing during the performance. See id. Likewise, when Doe eventually enters the workforce, she might attempt to seek such a ban if she works in a cubicle-filled office. Indeed, employees with sensitivity to smells rather than sounds have regularly attempted to ban such things as perfume or scented candles in their workplaces under the ADA or Rehabilitation Act (albeit without much success). See, e.g., Milton v. Tex. Dept. of Crim. Just., 707 F.3d 570, 572-74 (5th Cir. 2013); Robinson v. Morgan Stanley & Co., 269 F. App‘x 603, 605-08 (7th Cir. 2008) (order); Montenez-Denman v. Slater, 2000 WL 263279, at *1-3 (6th Cir. Mar. 1, 2000) (per curiam).
For another thing, other people at L&N could have requested the same type of ban that Doe‘s parents seek in this case. See Fry, 137 S. Ct. at 756. Suppose the school‘s policy required all teachers to allow eating and chewing during class. A teacher with the same condition as Doe might attempt to seek an identical accommodation in order to teach effectively. See id.
Fry‘s real-world question confirms that the gravamen of Doe‘s claim is not the denial of special education. See id. at 757. According to the complaint, Doe‘s parents have nеver sought (and Knox County has never proposed) an IEP for Doe under the IDEA. Compl., R.27, PageID 252. Thus, even though the IDEA requires school districts to locate eligible children with disabilities,
Knox County responds that the denial of a free appropriate public education is the “crux” of the complaint because Doe‘s parents allege that the failure to impose an eating and chewing ban has caused Doe to suffer a “gap in learning” and “negatively affect[ed] [her] grades[.]” Compl., R.27, PageID 258. Invoking Fry‘s hypotheticals, the county points out that a child could not allege that a theater caused this educational harm, and a teacher could not assert the harm at Doe‘s school. This logic improperly reaches beyond the challenged conduct to the resulting injury. By doing so, the county attempts to resuscitate our outdated approach asking whether a child‘s “injuries were, broadly speaking, ‘educational’ in nature.” 137 S. Ct. at 758. Fry rejected this approach, as evidenced by its discussion of the hypothetical “wheelchair-bound child” who sued under the ADA for “access ramps” at school. Id. at 756, 758. The Court explained that the lack of ramps likely would have “educational consequences” because a child who cannot get into school “cannot receive instruction there[.]” Id. at 756. Yet the Court listed this claim as the prototypical example of relief that does not require exhaustion. Id. It reasoned that the child‘s parents could have brought the same suit against a “library or theater” even if the lack of access ramps at those locations would cause different injuries. Id. Identical analysis applies here.
Knox County also compares this case to our decisions in L.G. and Perez, both of which applied the exhaustion provision to claims under the ADA or Rehabilitation Act. But the parents in these cases requested instructional changes. In L.G., a student with E. coli could not attend school and, rather than offer the student home learning, the school charged his parents with truancy. 775 F. App‘x at 228-29. His parents alleged that the school had refused to assist with the student‘s “academic needs” and to provide “educational services” to him. Id. at 231 (citation omitted). They thus disputed its failure to provide instruction “in the home“—what anyone would call “specially designed instruction.”
B. Preliminary Injunction under the ADA and Rehabilitation Act
Doe‘s parents next ask us to grant her a preliminary injunction requiring Knox County to implement her requested eating and chewing ban under the ADA or Rehabilitation Act. To evaluate this request, we must ask, among other questions, whether Doe‘s parents have shown that they will likely succeed on their claims. See Sandison v. Mich. High Sch. Athletic Ass‘n, Inc., 64 F.3d 1026, 1030 (6th Cir. 1995). They argue that they will likely succeed because the ADA and Rehabilitation Act require schools to make “reasonable accommodations” for the disabled, and they describe their requested eating and chewing ban as “reasonable.” But their cursory briefing on appeal falls well short of justifying a preliminary injunction at this time.
Consider their ADA claim. Title II provides: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Nevertheless, the Attorney General has issued a regulation imposing this duty under Title II as well: “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”
Or consider their Rehabilitation Act claim. It similarly provides: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance[.]”
At day‘s end, we opt not to decide any interpretive issues about these two laws because the parties have not adequately briefed the merits. Rather, we will simply deny the request of Doe‘s parents that we grant a preliminary injunction on appeal and remand for the district court to consider the merits in the first instance. Cf. Speech First, Inc. v. Schlissel, 939 F.3d 756, 770 (6th Cir. 2019). We reverse the dismissal of the complaint, deny the request that we issue a preliminary injunction on appeal, and remand for proceedings consistent with this opinion.